Two years ago, Elizabeth Marcell, the director of intervention services at ReNEW Schools in New Orleans, faced an unenviable challenge. As the charter network worked to open its first two schools in the city, she saw that every special education file she inherited from the schools the network took over failed to comply fully with federal and state laws. Marcell, who wrote her dissertation on charters and special education, knew she had to act quickly. Some people in the charter world “don’t understand they are legally obligated to serve students with disabilities,” Marcell says. “But I don’t think ignorance is going to be a viable answer for much longer.”

As charter schools transition from a fringe alternative to a mainstream option in many communities, special education is emerging as their Achilles’ heel. Over the last few years, numerous reports have shown that most charters do not enroll as large a proportion of disabled children as do their traditional school counterparts. The gaps are particularly wide when it comes to students with the most challenging needs, such as multiple disabilities and severe autism, who cost much more to educate.

The numbers have come to symbolize a larger ethical and political dilemma for the charter school movement. Charter advocates cannot easily make a case for expansion if they continue to underenroll a segment of children. “If there is a consensus that charters are awesome schools for a select group of kids, the public and politicians will lose interest and move on to the next thing in education,” says Chris Wilkens, an assistant professor at SUNY Brockport who specializes in school choice.

The gaps also expose charter schools to lawsuits. In the two cities with the largest share of charter schools, New Orleans and Washington, D.C., civil rights organizations have sued or filed legal complaints in the last two years alleging that charters discriminate against students with special needs, at least partly by denying them admission.

Some charter operators earnestly want to serve all students and even use their flexibility to improve on traditional schools’ record of educating disabled children. At some charters, educators like Marcell are responding to the pressure with a fresh sense of urgency: joining cooperatives that essentially function like special education support groups or developing specialties in specific areas. But not all charters are, causing some disability rights advocates to push for more sweeping and prescriptive changes from state policy makers and charter authorizers, including everything from forcing charters to join larger districts (at least for the purposes of special education) to imposing enrollment quotas. They question whether charter schools can effectively police themselves, especially when there is so much financial incentive not to serve students with challenging behaviors and conditions.

“Charters are trying to solve their problems from within on this issue,” says Robert A. Garda, a law professor at Loyola University in New Orleans. “They need outside pressure.” Despite the publicity surrounding the issue in many cities, Garda says he still encounters charter operators who are very confused about their legal obligations to serve students with disabilities. “They don’t even know what they don’t know.”

An Uneasy Relationship
Numbers tell only a part of the story. Just because a school enrolls a high percentage of students with disabilities, that’s no guarantee it is serving them well. So far, no research has compared the success of special needs students at charter schools versus traditional schools. The focus has been on enrollment numbers because they provide concrete evidence of systemic discrepancies.

Last summer the U.S. Government Accountability Office (GAO) released the most comprehensive study yet on charter schools and special education. It reported that during the 2009–2010 school year, the percentage of students with disabilities at charter schools across the country was 8.2 percent, compared with 11.2 at traditional schools. In 30 states, charter schools enrolled a smaller percentage of disabled children; in only six states did they enroll a greater share.

Much research, including the GAO report, suggests that charters tend to enroll fewer students with special needs because of district assignment policies, a disconnect between charters and parents, and lack of attention to the law (see sidebar “The Reasons Behind Underrepresentation”).  The Reasons Behind Underrepresentation

A small but growing body of research suggests that there are three main reasons charters enroll a smaller share of children with special needs:

• By decree: Charters might be part of a larger school district whose administrators steer children with disabilities away from charter schools as a matter of course, perhaps because they believe traditional schools are better equipped to meet diverse student needs. The authors of the 2012 GAO report wrote that “in some instances, charter schools are not ultimately responsible for making the final placement for students with disabilities.”

• By default: Charters can also end up with fewer disabled children as a result of their own passivity. Marcell found that relatively few of the New Orleans charter principals she interviewed for her dissertation incorporated disabled students into their planning. Charter school operators sometimes claim parents of children with disabilities do not apply to their schools even though they are welcome. But such research suggests increased planning and outreach could help change that dynamic.

• Deliberate flouting of the law: At least some charter schools, it appears, discourage special needs students from applying, refuse to admit them, or encourage them to leave once enrolled. The GAO report cited anecdotal accounts from at least a few charter schools. And a federal lawsuit filed against the Louisiana Department of Education in 2010 described several cases where children with special needs were turned away from charter schools. However, a November report from the University of Washington’s Center on Reinventing Public Education, which studies school reforms such as charters, posed the question, “Are charter schools underenrolling or underidentifying students with disabilities, or are district-run schools overidentifying them?” Indeed, in some cases, charter schools may have lower special education numbers because they manage to give students the instruction they need without identifying them as special needs, charter operators say.

At Dugsi Academy, a charter school in St. Paul, Minn., less than 5 percent of the students received special education services until last year, says Patty McCauley, the assistant director. Most of the students are the children of Somali immigrants, who sometimes refuse services because of the cultural stigma, she says. Although the school has slowly identified more children as disabled, teachers have tried to work around the issue through grouping and individualizing instruction.

For both pragmatic and philosophical reasons, charters have always had an uneasy relationship with special education. Since many of them operate as stand-alone school districts, they often lack the economies of scale that make it easier to serve students with diverse needs. A larger school district, for instance, can hire medical professionals or aides to work across multiple schools with children who have the same disability. Moreover, many charter school leaders are antibureaucratic in their orientation: They embrace the model because they believe it to be comparatively free of regulation and red tape. Special education, on the other hand, is one of the most regulated, logistically cumbersome areas in public education.

Its laws and requirements “contrast starkly with the fundamental nature and culture of charter schools and pit regulation against autonomy, procedures against results, rigid bureaucracy against flexibility, and collective action against independence—all in the same school house,” Garda wrote in a North Carolina Law Review essay last year.

Volunteer Efforts
Many of the charter community’s own efforts to improve services for disabled children fall into two broad categories: cooperation and specialization.

A group of Washington, D.C., charter school leaders formed the first special education cooperative for charters more than 14 years ago. Slightly more than half of the city’s charters now participate, paying an annual membership fee that provides them with advice on particularly hard cases and professional development, among other services. Monica ­Lesperance, the cooperative’s deputy director, says members routinely ask for help training general education teachers on special education issues, for advice on aligning individual education plans with the curriculum, or for strategies for calming down students who are disruptive in class.

Educators in other cities and states, including Louisiana and New York, have copied that model to varying degrees. The Louisiana Special Education Coop, which opened in 2009, helped Marcell discover all the problems in ReNEW’s special education files after the cooperative’s leaders performed a paperwork review. In some cases, individualized education plans were missing required information about student grades and attendance. In other cases, teachers had cut-and-pasted the same student plan year after year without bothering to change the dates, much less note progress or setbacks.

Marcell and the rest of ReNEW’s special education staff worked during the network’s first year to get the paperwork into compliance with state and federal laws while providing the best services they could. Since then, she has used the cooperative—which costs each school $1,500–2,500 for annual membership—for professional development, networking, and advice on particularly complicated cases.

ReNEW, like a growing number of charters, has also tried specializing. In 2011, the network created a small therapeutic center mostly for students with severe emotional disorders. Each of the 12 students in the program has been hospitalized multiple times for violent or suicidal behavior. On a recent morning, the staff rejoiced when one student briefly protested being kept in for recess by crying, clenching his fists, and shouting “I don’t want to be here!” Two weeks earlier he would have had a complete meltdown and required several hours of recovery time, they said.

With a full-time counselor, regular visits from psychologists, two teachers, and four aides, ReNEW’s therapeutic program costs more than $460,000 annually, or about $38,000 per child. That’s nearly five times what ReNEW spends on a regular education student. The network pays for the program with a grant from a New Orleans–based organization called the Institute of Mental Hygiene. Through a competitive application process, ReNEW also receives a share of federal money Louisiana sets aside for school districts serving students who cost more than three and a half times the standard per-pupil rate.

Denver has embraced a similar model for its charters over the last two years as part of an effort to narrow special education enrollment gaps and ensure that disabled children have some school choice. Four of the city’s charters now include centers focused on students with specific needs, like autism or emotional disabilities. Over the next three years, the district plans to create additional charter-based centers until they are serving the same percentage of students with severe disabilities as the noncharters, says John Simmons, executive director of student services for Denver Public Schools.

The district has not forced any charter schools to open centers, but volunteers have been fairly easy to find, since the district pays the extra cost. Regardless of whether they host centers, all charter schools contribute to a districtwide fund for students with significant disabilities. Simmons does not believe charters should be coerced into boosting their special education numbers. He worries that medically and emotionally fragile children would end up in schools whose administrators do not want them. “We do a better job through persuasion than mandates,” he says.

No Time for Slow Growth
Others believe charter schools can’t be trusted to enroll the most challenging students, particularly given the steep costs. They favor a host of legal and regulatory changes that would force charters’ hands.

New York took a rare step in the latter direction last summer when the state education department required charter schools to begin serving roughly the same proportion of special needs students as their district’s average. Some charter operators vigorously fought the measure. “The proposed targets . . . institutionalize perverse incentives to over-identify students with disabilities and to not move students fully into the general education programs,” wrote Eva Moskowitz, the CEO of New York’s Success Academy charter network, in a letter to the state’s authorizers.

Advocates for increased charter oversight say authorizers would not need quotas if they demanded greater accountability from charters. Applicants for new charter schools should be required to submit more detailed and thoughtful special education plans when they apply for a charter, says Loyola’s Garda. Many authorizers make applicants commit to following the mandates of federal law. But he says little effort is made to ensure that prospective school operators know what the law actually calls for.

Authorizers need to show they are willing to shutter charter schools that repeatedly turn away or fail to serve students with disabilities, advocates say. SUNY Brockport’s Wilkens knows of only one case, Dove Science Academy in Tulsa, Okla., where a charter has closed solely because of problems with its special education program.

In New Orleans, like most cities, the focus so far has been much more on the carrot than the stick. The city provides an interesting test case, since more than 80 percent of its public school children attend charters. Margaret Lang, former head of intervention services at the state-run Recovery School District, which oversees most of the city’s schools, says voluntary programs like the cooperative have helped to a certain extent, though their effect is not easily quantifiable. Nine percent of the Recovery School District’s charter school students received special education services, compared with about 6 percent five years ago. Charter leaders now have a much better understanding of their legal responsibilities, she says.

But Lang believes schools might need to be pushed more moving forward. Last spring there were still eight Recovery School District charter schools where fewer than 6 percent of students received special education services—a red flag that they might be turning away students with disabilities, since the district average is closer to 10 percent. She wants district and state officials to monitor charter school special education programs more closely through ongoing site visits and paperwork reviews to ensure that they are obeying the law and working to improve their services.

“I constantly hear that charter schools are going to ‘grow into’ special education,” Lang says. “I’m tired of hearing that. There isn’t time for them to grow into it. The kids are here right now.”

Sarah Carr, a freelance education writer, is the author of Hope Against Hope (Bloomsbury Press, 2013), which tells the story of the New Orleans schools post-Katrina.