Are Charter Schools Upholding Student Rights?
By Rosa K. Hirji – January 14, 2014
Charter schools promote the idea that, like public schools, they are tuition free and open to all students. However, public schools cannot be selective about the students that they enroll and keep. On the other hand, charter schools—according to recent court decisions from the California Court of Appeal and a U.S. district court in Hawaii—have the discretion and ability to dismiss students in a manner that would be unconstitutional if done by a public school. As it becomes more apparent that students in charter schools do not enjoy the same rights as they would in public schools, the “public” nature of charter schools is called into question.
Scott B., a 14-year-old student with a diagnosis of attention deficit hyperactivity disorder (ADHD) was dismissed from his charter school by letter from the principal for bringing a knife to school and showing it to another student. There was no hearing and no finding to support the decision by the charter school’s board of trustees in the one-sentence dismissal letter. On June 14, 2013, the California Court of Appeal in Scott B. v. Board of Trustees of Orange County High School of the Arts ruled that charter schools are exempt from California law requiring due process hearing procedures for students undergoing an expulsion from their local public school.
The decision in Scott B. allows charter schools in California to dismiss a student unilaterally, leaving that student with little protection against unfair removal. The court held that the due process hearing protections of the California Education Code do not apply to charter schools because Scott was dismissed rather than expelled. According to the court, a dismissal does not raise due process concerns to the same degree as expulsion because after being dismissed, the student is free to enroll in the local public school. Unlike public schools, the court observed, a charter school is a school of choice.
After Scott B., California charter schools can simply characterize an “expulsion” as a dismissal and thereby avoid ever having to provide an expulsion hearing.
Following on the heels of Scott B., the U.S. District Court of Hawaii in Lindsey v. Matayoshi granted a motion for summary judgment against a 14-year-old student, RFL, who was expelled from her charter school for posting comments about another student on her Facebook page. RFL did not receive a due process hearing. School administrators offered to assist RFL in enrolling in a local high school, but her parents declined in part because of distances and travel time. The court in Lindsey held that while RFL had a property interest in education, that interest did not include a right to a certain type of education or curriculum, smaller class sizes, or a school close to her home. Because RFL had the ability to return to the local public high school, the court held, she suffered no deprivation in her property interests; therefore, she was not entitled to a due process hearing for her expulsion from the charter school.
The idea propounded by the courts that a dismissed or expelled charter school student can enroll in a public school the next day does not always reflect reality. For example, the California Department of Education advises school districts that once a student is expelled from a charter school, “[t]he district may choose to treat a student expelled from a charter school in the same manner as a student expelled from the district.” The San Diego County Office of Education instructs school districts to review charter school removals to determine whether the district would have expelled the student and, if so, to enroll that child in an alternative school. Emily Alpert, “San Diego’s Expulsion Purgatory,” Voice of San Diego, Apr. 11, 2013. The court decisions do not take into account the disruption caused to the child, the family, and the local public school when a student is forced to relocate midyear. The decisions further do not anticipate the consequences of this almost unfettered authority by charter school administrators to remove students, particularly the consequences on students of color or low-income students.
Expulsion hearings are designed to afford a fair process to the student undergoing an expulsion. This right is guaranteed by the U.S. Constitution, under the Due Process Clause. California laws governing expulsions are also designed to ensure that the disciplinary sanctions are proportionate to the offense. These protections are critical in light of reports by civil rights groups that zero-tolerance discipline has impacts on students of color and students with disabilities at disproportionately high rates.
After Scott B., the only recourse for the student victim of an unfair dismissal from a charter school in California is to go to court. In contrast, those who allege wrongful expulsion from a public school can access an informal and low-cost administrative process that allows for appeals to the county board of education. Courts will review “dismissals” from charter schools but only if they are “arbitrary or capricious” because there is no underlying right to a hearing. According to the court in Lindsey,the parent would need to produce evidence to demonstrate that the alternative school was significantly inferior to the charter school before a deprivation of property interest could even be contemplated. These burdensome standards make it much more difficult for children and parents to challenge a charter’s dismissal.
Scott B. and Lindsey will fuel the ability of charter schools to be selective about which students they retain, allowing them to deliver better outcomes. Evidence of such selectiveness includes reports of charter schools screening out students with special education needs (in particular, those with severe disabilities) and demonstrating higher rates of suspension and expulsion of students of color than public schools. According to Reuters, “across the United States, charters aggressively screen student applicants, assessing their academic records, parental support, disciplinary history, motivation, special needs and even their citizenship, sometimes in violation of state and federal law.” Stephanie Simon, “Special Report: Class Struggle—How Charter Schools Get Students They Want,” Reuters, Feb. 15, 2013.
Even the U.S. Secretary of Education, Arne Duncan, whose policies have encouraged the establishment of charter schools, acknowledges that “[i]n many cities . . . charters are substantially more likely to suspend and expel students than other public schools.” Valerie Strauss, “Arne Duncan Praises, Slaps Charter Schools,” Wash. Post, July 3, 2013.
In Los Angeles, charter schools have come under heavy criticism for turning away students with disabilities. Howard Blume, “Charter Schools in L.A. Unified to Get More Special Education Money,” L.A. Times, Jan. 5, 2011. This is comparable to concerns raised by communities across the country. A study by the Civil Rights Project at the University of California at Los Angeles expressed alarm at the role of charter schools in creating a higher level of segregation among students who are African American:
Charter schools, in many ways, have more extensive segregation than other public schools. . . . Charter schools attract a higher percentage of black students than traditional public schools, in part because they tend to be located in urban areas. . . . As a result, charter school enrollment patterns display high levels of minority segregation, trends that are particularly severe for black students.
Civil Rights Project, Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards (Jan. 2010).
In fact, until very recently, the Office for Civil Rights of the Department of Education (OCR) did not collect data on civil rights outcomes for students in charter schools. OCR will release, for the first time, data related to charter schools for the 2011–2012 school year in early 2014.
While charter schools that receive federal funding must still comply with federal civil rights statutes—such as the Individuals with Disabilities Education Act (IDEA), section 504 of the Rehabilitation Act of 1973, and Title VI of the Civil Rights Act—the lack of oversight by a public board of education means that it is left to students and parents to enforce the laws independently through expensive litigation. The reality is that parents who can afford such actions will more likely locate a better school or have political clout within the charter school that allows them to avoid the worst violations.
Although not raised in the case, a dismissal from the Orange County School of the Arts (OCSA) was likely a tremendous loss of opportunity for Scott B. It appears, from the data, that OCSA is a unique and elite charter school—and a selective one. Ed-Data, Fiscal, Demographic, and Performance Data on California’s K–12 Schools. OCSA receives up to $5 million a year in corporate and private donations. OCSA also receives taxpayer money to support its students. OCSA is ranked as one of the top 10 schools in California, and it touts an academic program that aims to produce high-achieving and motivated scholars. OCSA is also racially and economically exclusive. Half of the students enrolled at OCSA are white, whereas white students comprise only 2.8 percent of students enrolled in the Santa Ana School District, where the charter school is located. Similarly, 6.4 percent of OCSA students are eligible for free and reduced meals, compared with 75.7 percent of students enrolled in the district. The court in Scott B. failed to consider the implications of the ability of a racially and economically selective school to remove students of its own choosing to maintain exclusivity, if that were its inclination.
The structures that allow charter schools to exist are marked by the absence of protections that are traditionally guaranteed by public education, protections that only become apparent and necessary when families and students begin to face a denial of what they were initially promised to be their right. The decisions of Scott B. and Lindsey may encourage charter schools to push certain students out and make it easier to deny them the benefits of a publicly supported education. The perception that charter schools are open to all students is being called into question by increasing evidence that children who are disadvantaged by a disability, poverty, or being a member of a minority group, or who have been accused of an offense, may not have the same access to charter schools as those are not.
Keywords: litigation, children’s rights, charter schools, civil rights, due process, expulsion hearing
Rosa K. Hirji practices law in Los Angeles, California, and serves as cochair of the ABA Section of Litigation's Children's Rights Litigation Committee.