What, Why and How: Policies and Practices for Charter Schools To Help Reduce Legal Liabilities – Part I

Often, Charter Schools are faced with situations involving students with disabilities where their policies and practices are challenged.  If the school does not have the proper policies in effect, it can result in liability and increased costs for the school.  Ensuring that the proper policies and practices for charter schools are in place to address various issues related to students with disabilities can keep your school out of hot water.

Some of the policies and practices discussed in this series are required and others are just “best practice.”   However, even if not required by federal or state law, having policies in the “hot button” areas can assist your school when parents, students, and/or members of the public present with problematic behaviors.

This article will address policies and practices regarding Section 504 of the Rehabilitation Act and Nondiscrimination.   Part II of the series will address visitor conduct on school property, service animals in the school and enrollment capacity.

Section 504 of the Rehabilitation Act

a. Why do schools need policies in this area?

Because it is required and best practice!  Each public school (which includes charter schools) “shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.”  (34 C.F.R 104.33(a)).   Although the 504 statute does not explicitly require the implementation of overall policies and procedures like the Individuals with Disabilities Education Act (IDEA) does, without them, schools could have trouble demonstrating compliance should a discrimination complaint be filed with the Office for Civil Rights (OCR).

However, despite not including an overall requirement for written procedures, the 504 law does require schools who take federal funding from the Department of Education to “establish standards and procedures for the evaluation and placement of persons who because of handicap need or are believed to need special education or related services.  (34 C.F.R 104.35(b)).  These procedures must ensure that:

1. Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;

2. Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and

3. Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

Section 504 also requires schools to establish and implement procedural safeguards “regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services.”  (34 C.F.R 104.36). These procedural safeguards must include notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure.

Another reason to have policies and procedures for the implementation of Section 504 is that the law in this area is very vague.  There are no requirements in the statute as to how a student’s Section 504 plan has to be drafted, like there are for IEPs under the IDEA.  Having procedures and forms to utilize when determining students’ eligibility under Section 504 can be very helpful in showing that the School complied with federal requirements when a complaint is made against the Shcool.

b. How should a policy be written?

School policies and procedures related to Section 504 should be comprehensive as to how and when a student is referred for identification under Section 504; the process for determining eligibility and conducting an evaluation; and procedures for implementation and review of the 504 Plan.  The School should also have a procedure for how parents can request a due process hearing under Section 504.

The school should also have procedural safeguards for the parents.  Although schools can use the same procedural safeguards as are required for the IDEA, it would not be wise to do so.  The procedural safeguards under Section 504 are not as comprehensive and may lead to confusion when parents seek to exercise their rights.  For example, under the IDEA, the procedural safeguards discuss the parents’ right to an independent educational evaluation.  However, under Section 504, there is no right to this type of an evaluation.

Nondiscrimination/Equal Education Opportunity

a. Why do schools need policies in this area?                   

Because it is best practice.  The Equal Educational Opportunities Act (EEO) of 1974 is a federal law that prohibits discrimination against faculty, staff, and students, including racial segregation of students, and requires school districts to take action to overcome barriers to students’ equal participation.  Specifically, the law states that “all children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin; and the neighborhood is the appropriate basis for determining public school assignments.”  (20 U.S.C. 1701).

b. How should a policy be written?

Although the law does not explicitly require the implementation of a written policy, it is best practice to have a statement written into your school handbook and on the school website as to the school’s position on nondiscrimination toward students.  Often, when an OCR complaint is made, this is the first policy OCR will request for its investigation to ensure the School was knowledgeable of its obligation to prohibit discrimination.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Policies and Practices for Charter Schools, or any other education law matters, please feel free to contact Education Law Attorney, Kimberly R. Davis at 480.461.5387, log on to www.udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.