WHO IS RESPONSIBLE FOR A DISABLED STUDENT’S EDUCATION WHEN A PUBLIC CHARTER SCHOOL FAILS?

 

In many states, and especially in Pennsylvania, there has in recent years been a clear proliferation of public charter schools.  Such public charter schools can take the form of a cyber public charter school, where the student attends school online, though a computer connection; or “brick and mortar” public charter schools that have physical buildings and/or rooms where students attend classes and receive instruction.

 

Many families believe that such schools offer quality alternatives to traditional public schools that are operated by their local school districts.  Families of students with disabilities who are eligible to receive Special Education and Related Services under the Individuals with Disabilities Education Act (“IDEA”), or accommodations pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), may also elect to enroll their children in public charter schools rather than their local district-run school.  With some exceptions, students enrolled in public charter schools are entitled to the same protections under IDEA and Section 504 as they would be if they attended their local district-run school.  In particular, such students are entitled to receive a Free Appropriate Public Education (“FAPE”) through either an Individualized Educational Plan (“IEP”) under IDEA, or a Section 504 Service Agreement under Section 504.  Thus, a public charter school cannot fail to provide a disabled student with a FAPE on the pretext that its obligations under IDEA and Section 504 are somehow lessened or diminished simply because the school is not operated by, or lacks the resources of, a local school district.

 

Unfortunately, it is an increasingly common phenomenon that charter schools financially fail and shut their doors, often with little to no advance warning.  That can leave disabled students attending such schools in a precarious situation.  This is especially so in an instance where the family of such a student has prevailed in a Due Process proceeding against such a school and has been awarded, or entered into a settlement agreement for, compensatory education or other relief for the charter school’s past failures to provide the student with a FAPE.  If the school is no longer in existence and cannot provide such relief, the question arises: how does this failure affect the student’s right to receive compensatory education or other educational relief?

 

Fortunately, there is an emerging trend in the law that makes clear that the relevant State Educational Agency, or “SEA,” becomes responsible to provide a FAPE to a student, including ensuring any past award of compensatory education, when the charter school (which is the Local Educational Agency, or “LEA”), cannot do so due to financial failure or other reasons.  In Pennsylvania, the SEA is the Pennsylvania Department of Education (“PDE”).  A series of recent cases affirms that PDE is required to supply a FAPE to a disabled student where a public charter school closes for financial or other reasons.

 

The recent decision of a Pennsylvania federal court in Charlene R. v. Solomon Charter School, clearly sets forth the obligations of PDE in a case where a charter school that has failed to provide a FAPE to a disabled student has ceased to exist.  The court set out the issue as follows:

 

The case before this Court raises important questions regarding whether a resolution agreement between a child and a charter school reached pursuant to the Individuals with Disabilities Education Act (IDEA) should be enforceable against the Commonwealth of Pennsylvania’s Department of Education, as the State Education Agency, where the charter school has become insolvent and has ceased to exist, leaving the child with nowhere else to turn to vindicate his right to a free appropriate public education. I conclude that such an agreement can be enforced against the Commonwealth in this limited scenario.

 

The court noted that, under IDEA, the SEA “retains primary responsibility to ensure that all children with disabilities receive the education that is their right under the IDEA.” The court specifically noted the issues presented by public charter schools which, unlike public school districts that encounter financial difficulties, “can simply disappear.  This is a reality that the Court cannot ignore.”  In the situation of a failed charter school, the court concluded that PDE must bear responsibility for providing a disabled child with a FAPE.  Under the facts of the case, the court ruled that PDE was responsible for fulfilling the terms of a settlement agreement reached between the family and the failed charter school, stemming from a Special Education Due Process Complaint that the family had brought against the charter school.  The court reached this decision even though PDE did not directly violate any statutory duties toward the student, and was not a party to the Due Process case.

 

Cases since Charlene R. have reinforced that PDE has the responsibility to provide a disabled student with a FAPE where a failed charter school cannot do so and, indeed, PDE has admitted to this responsibility.  For instance, PDE has agreed that it must provide a student of a failed charter school with compensatory education for the charter school’s past violations.  PDE, however, has taken the position that it has no responsibility to comply with the specific terms of a settlement agreement reached between a failed charter school and a family (such as in Charlene R.), or to pay attorneys’ fees that are normally available to families of disabled children who prevail in a Due Process hearing.  The law in this area is evolving, and courts will likely decide such issues in future cases.

 

It should be noted that this area of law principally addresses PDE’s responsibility for past violations of a disabled student’s right to a FAPE.  If a disabled student of a failed charter school enrolls in different charter school, or in the local school district, it is the obligation of that charter school or district to provide the student with a FAPE going forward.  However, if the failed charter school that the student previously attended did not provide the student with a FAPE, or cannot provide compensatory education or other relief that was previously awarded, families can in many cases still seek remedies for such violations by bringing a Due Process action against PDE.