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  • Kristen Maurer McCarthy, Esq.

Special Education, Disability, and Intent to Enroll/Application Forms

It has come to our attention that the U.S. Department of Education’s Office for Civil Rights (OCR) is cracking down on what it believes could be illegally discriminatory admissions processes employed by charter schools. An OCR investigation can be both financially costly and a public relations nightmare for charter schools. However, these investigations into discriminatory admissions practices are easily avoidable.

Section 504 of the Rehabilitation Act of 1973 (Section 504) provides that students with a disability who are attending or seeking to attend a charter school have the same rights as students who do not have a disability. All students have the right to a Free Appropriate Public Education (FAPE), which, according to official OCR guidance, constitutes, “regular or special education and related aids and services designed to meet the individual educational needs of a student with a disability as adequately as the needs of nondisabled students are met... .”1 In other words, charter schools are responsible for providing an individualized educational experience for each student with a disability, which includes providing these students with the necessary services and accommodations to ensure that they are receiving FAPE. This directive makes it obvious, therefore, that, at some point, charter schools must ask their students whether they have been diagnosed with a disability or otherwise have a need for special education and related aids, accommodations, and services.

However, it is important to know when it is allowable to request information about a student’s educational needs. According to OCR, “During the admissions process, a charter school generally may not ask a prospective student if he or she has a disability”2 [emphasis added]. However, “After enrollment, a charter school may ask if a student has a disability, which includes, e.g., whether a student has an individualized education program (IEP) or Section 504 plan”3 [emphasis added]. Section 504 requires charter schools to maintain impartiality in all student-recruitment efforts and also to provide an opportunity to enroll that is completely nondiscriminatory regarding disability and the need for special education or related services. This means that a charter school’s admission’s process must not include questions about whether a student has a disability. Simply put, a charter school may not discriminate against students with a disability or in any way discourage students with a disability from applying.

It is of vital importance, therefore, that schools do not ask if students have a disability at any point in the admissions process. This policy is intended to ensure that charter schools are not, whether purposefully or unintentionally, discriminating against students based on disability during the admission’s process.

However, once a student has been admitted and has begun the enrollment process, a charter school may (and always should) ask whether the student has a disability or the need for special education or related services to ensure that it is adequately providing the student FAPE. By not inquiring about a student’s disability in any way until after the student enrolls, charter schools can both avoid costly OCR investigations and ensure that prospective students with disabilities are treated fairly and equitably throughout their educational journeys.

This information does not constitute legal advice and should never be relied on as such. If you have any questions regarding your charter school’s current application, admissions, or enrollment procedures, please do not hesitate to contact us.


Kristen Maurer McCarthy

303-209-7813 Ext. 2

kristen.mccarthy@charterschoollawgroup.com


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