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MAR-11-1999 12:24
OFC OF THE DEP SECY
202 401 9027 P.02/15
QUESTIONS
AND
ANSWERS:
Application of Federal
Civil Rights Laws to
Public Charter Schools
U.S. Department of Education
OF DEPARTMENT
Office for Civil Rights
AMERICA
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QUESTIONS AND ANSWERS ON THE APPLICATION OF FEDERAL
CIVIL RIGHTS LAWS TO PUBLIC CHARTER SCHOOLS
One of the fastest growing areas of public school reform is the charter schools movement.
President Clinton has called for the creation of 3,000 charter schools by early in the next century
as a vehicle for promoting choice and innovation within public school systems. Charter schools
are public schools under contract - or charter - between a public agency and groups of parents,
teachers, community leaders or others who want to create alternatives and choice within the
public school system. In exchange for greater accountability for student achievement, charter
schools are given expanded flexibility with respect to statutory and regulatory requirements.
However, charter schools remain subject to federal civil rights laws.
This "Questions and Answers" Handout has been prepared by the Office for Civil Rights (OCR)
in the U.S. Department of Education to assist charter schools in meeting their obligations under
federal civil rights laws in the areas of recruitment and admissions, provision of appropriate
services to limited English proficient (LEP) students, and provision of a free appropriate public
education and program accessibility to students with disabilities. OCR is responsible for
enforcing civil rights laws that protect students and other participants from discrimination on the
basis of race, color, national origin, sex, disability, and age in- programs and activities that receive
federal financial assistance. These laws are: 1) Title VI of the Civil Rights Act of 1964, which
prohibits discrimination on the basis of race, color, and national origin; 2) Title IX of the
Education Amendments of 1972, which prohibits discrimination on the basis of sex; 3) Section
504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability;
and 4) the Age Discrimination Act of 1975, which prohibits discrimination on the basis of age.
OCR also is responsible for enforcing Title II of the Americans with Disabilities Act of 1990,
which prohibits discrimination on the basis of disability by public entities, including public
charter schools and public school districts, regardless of whether they receive federal financial
assistance.
These Questions and Answers are not intended to provide all of the information that may be
needed to ensure compliance with civil rights laws. Rather, our intent is to highlight key
requirements. Details of these requirements are described in OCR regulations and policy
documents and applicable court decisions. For more detailed information about the civil rights
requirements addressed in these Questions and Answers, as well as other requirements under the
federal civil rights laws, please contact the OCR enforcement office that serves your state. A list
of the addresses and telephone numbers of the OCR enforcement offices is attached.
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Entity Responsible for Civil Rights Compliance
Q:
Which legal entity is responsible for ensuring that a public charter school is
complying with federal civil rights laws?
A:
The recipient of federal financial assistance is responsible for ensuring that a
public charter school is complying with federal civil rights laws. Where 2 charter
school is part of a local educational agency (LEA), the LEA is responsible for
ensuring that the charter school is complying with the requirements of the federal
civil rights laws. Where the charter school is considered a "local educational
agency" under the state charter schools law, then the charter school itself is
responsible for ensuring compliance with the federal civil rights laws. It should
be noted that where a charter school receives funds under the federal Public
Charter Schools Program, the state education agency and any other authorized
chartering agency also would be responsible for ensuring that the public charter
school is complying with federal civil rights laws. In addition, the state
educational agency (SEA) is responsible in all cases for having methods of
administration that ensure nondiscrimination.
Effect of Existing Desegregation Plans on Public Charter Schools
Q:
What effect does an existing desegregation plan for a school district have on the
establishment or operation of a public charter school in that district?
A:
When a public charter school is being established in a jurisdiction that is under a
Title VI desegregation plan approved by OCR, a court order requiring
desegregation, or a desegregation plan approved by any other administrative body
of competent jurisdiction under state law, the charter school must be established
and operate in a manner that is consistent with the desegregation plan or order.
Generally, the establishment of a public charter school in a jurisdiction that is
required to desegregate may not substantially impede or retard the extent of
required desegregation. In jurisdictions required to desegregate, the establishment
of a public charter school would be treated the same as the establishment of any
other public school.
Before a charter school may be established in a jurisdiction that is under a Title VI
desegregation plan approved by OCR, OCR must approve the establishment of
the charter school as being consistent with the applicable OCR-approved
desegregation plan, which may involve amending the Title VI desegregation plan.
Where a charter school is being established in a jurisdiction with court-ordered
desegregation or where desegregation is required pursuant to state law by an
administrative agency of competent jurisdiction, the LEA or the charter school's
governing board, if the charter school is governed by a board that is independent
of the LEA, should review the required desegregation plan to determine whether
establishment of the charter school is consistent with the desegregation plan and
whether approval by the entity requiring desegregation is needed.
2
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In order to receive planning funds under the federal Public Charter Schools
Program, an applicant for funds must certify either that the proposed charter
school will not be located in a jurisdiction that is required to desegregate or that
the charter school will take steps during the period of its planning grant to develop
an application for approval under any applicable desegregation plan or order. The
Secretary of Education urges charter schools seeking approval under a
desegregation plan or order to submit their applications in sufficient time to
ensure approval prior to the date the charter school is scheduled to open. A
charter school is precluded from receiving implementation funds under the federal
Public Charter Schools Program until it has actually received approval under the
desegregation plan or order.
Recruitment and Admissions
Ö
What steps should a public charter school take in order to be in compliance with
federal civil rights laws with respect to the recruitment of students?
A:
Consistent with Title VI, Title IX, Section 504, and Title II, a public charter
school must not recruit in a manner that discriminates against students of a
particular race, color, national origin, or sex, or students with disabilities.
However, charter schools may make additional efforts to encourage applications
from underrepresented groups.
Examples of ways that charter schools may recruit minority and LEP students are
as follows: 1) conduct presentations or meetings with parent teacher associations
or organizations at schools with a large number of minority students; 2) schedule
meetings or consultations with minority community groups; 3) indicate in
promotional materials that alternative language services will be provided for LEP
students; 4) indicate in such materials that a free or low cost lunch program is
available for eligible students; 5) disseminate information about the charter school
in newspapers and other publications and on radio stations that serve minority
communities; 6) promote the charter school in shopping malls and go door to door
with promotional literature in minority communities; and 7) emphasize in
meetings and promotional materials that students from all segments of the
community will be welcome at the charter school.
Q:
What steps does a public charter school have to take in its recruitment efforts with
respect to parents who are limited English proficient?
A:
A public charter school must ensure that parents who are not proficient in English
are provided with appropriate and sufficient information about the charter school.
This information must be effectively communicated to parents who are not
proficient in English. For example, in those communities that have significant
numbers of LEP parents, if outreach materials are made available to parents, these
materials may have to be available in languages other than English
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to ensure effective communication with LEP parents. If the charter school
conducts informational meetings with parents or community groups in local
communities that include significant numbers of individuals who have limited
English proficiency, then translation services should be available in order to
ensure effective communication.
a:
What steps does a public charter school have to take in its recruitment efforts with
respect to parents with disabilities?
A:
A public charter school must ensure that information about the charter school is
communicated as effectively to parents with disabilities as to other parents.
Appropriate auxiliary aids and services must be made available whenever they are
necessary to ensure effective communication for parents with disabilities. For
example, if outreach materials are made available on request to parents, these
materials should be made available in such alternative formats as Braille or large
print for parents with visual disabilities. If the charter school conducts
informational meetings with parents or community groups, qualified interpreters
should be provided on request for individuals with hearing disabilities.
Ö
What steps should a public charter school take in order to ensure that all students,
regardless of race, color, and national origin, are treated in a nondiscriminatory
manner in admissions?
A:
Public charter schools may not discriminate on the basis of race, color, or national
origin in determining whether the applicant satisfies any admissions requirement.
Charter schools receiving federal Public Charter Schools Program funds may set
minimum eligibility criteria for admission to the charter school, and thus for
inclusion in the lottery, only to the extent that such criteria: (1) further the
statutory purposes of the Public Charter Schools Program; (2) are directly
related to the educational mission of the charter school: and (3) are consistent with
federal civil rights laws. Regardless of whether charter schools receive federal
Public Charter Schools Program funds, any admissions criteria must be permitted
by state law and the school's charter and must be nondiscriminatory on their face
and applied in a nondiscriminatory manner. If these criteria have a disparate
impact on the basis of race, color, or national origin, the criteria must be necessary
to meet the school's educational objectives and there must be no feasible
álternative admissions criteria that have less disparate impact and meet the
school's educational objectives. For more detailed information about the
circumstances under which charter schools receiving federal Public Charter
Schools Program funds may set minimum eligibility criteria for admission, see
Public Charter Schools Program: Non-Regulatory Guidance.
Many state charter school laws also have specific provisions that are designed to
ensure that charter schools are open to all students. For example, consistent with
the federal Public Charter Schools Program, a significant number of states
specifically require that public charter schools use a lottery system for admissions
4
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DRAFT
purposes where there are more applicants than spaces available. A few state
charter school laws contain provisions designed to ensure that transportation
services are provided to low-income students attending such schools.
O:
Under Section 504 and Title II, what steps should a public charter school take in
order to ensure that students with disabilities are treated in a nondiscriminatory
manner in admissions?
A:
Students with disabilities may not be excluded from admission to a public charter
school solely on the basis of their disability. In applying admissions criteria to
students with disabilities, individualized determinations must be made as to
whether a particular student meets the criteria, and those determinations must be
made on a nondiscriminatory basis. For example, if students must take a written
examination as part of the admissions process to a public charter school, a student
who is blind would have to be provided appropriate accommodations in order to
take the test.
Civil Rights Funding Requirements
Q:
What civil rights requirements apply to the funding of charter schools?
A:
States have broad discretion in determining how and from what revenue sources
to fund charter schools. However, SEAs are responsible under civil rights
regulations to ensure that their methods of administration for overseeing and
supervising the provision of education under state law do not result in
discrimination based on race, national origin, or sex. Part of that obligation is to
ensure that state laws and procedures for financing public education do not have
the effect of racial or sex discrimination based on the student composition by race
and sex of LEAs. This obligation extends to the method of funding charter
schools that are considered LEAs under state charter school laws. Thus, if charter
schools enroll student bodies that vary significantly in terms of their race, national
origin, or sex from that of other LEAs in the State, and the State's methods of
funding charter schools result in disparate educational resources for charter
&
schools compared to other LEAs, there would be a possible claim that the State is
in violation of Title VI or Title IX. For example, some charter schools that are
considered LEAs under a state charter school law enroll a higher proportion of
minority students than other LEAs; if these charter school LEAs receive
significantly lower levels of public financing per student than other LEAs in the
State with corresponding deficiencies in educational resources for students, that
could be a basis for a claim against the State for violating Title VI. The State
could defend against such a claim by showing that any such disparities are
educationally justified. If it succeeded in doing so, there would be a question
regarding whether there is a less discriminatory alternative funding method that
would satisfactorily meet the State's educational objectives. These issues would
need to be examined on a case by case basis.
-(w.51
5.
rason
to
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The above-described standards do not assume any intent on the part of the State to
discriminate, but rather apply a disparate impact analysis of discrimination
provided for in Title VI and Title IX regulations. In addition, if it were shown that
the State foresaw these disparate impacts and continued to under-fund charter
schools, there would also be a question of possible intentional discrimination
under these laws.
These principles would apply as well to methods used by LEAs to allocate public
funds among charter schools and other public schools within their districts.
Discrimination on the Basis of Sex
Q:
Are single sex charter schools permissible?
A:
The Title IX regulation does not prohibit non-vocational elementary and
secondary single sex schools. Under Title IX, where there is a public school for
one sex, the other sex must be provided with-somparable courses, services, and
facilities pursuant to the same policies and criteria for admission. Therefore, if
there is a single sex charter school for students of one sex, students of the other
sex must be provided a comparable educational opportunity.
Provision of Appropriate Services to Students with Limited English
Proficiency
Ö
May a public charter school exclude from admission students who have limited
English language proficiency?
A:
A public charter school may not categorically exclude students based on their
national origin from participating in a public charter school's program. If there are
questions about the legality of the specific requirements of a program being
offered by a charter school that may affect LEP students, please contact the OCR
enforcement office that serves your state.
Q:
Do the requirements to provide appropriate services to LEP students that apply
when the LEP student attends any other public school also apply when the LEP
student attends a public charter school?
A:
Yes. Title VI prohibits the denial of equal access to education for a national
origin minority child. Where the inability to speak and understand the English
language excludes a national origin minority group child from effective
participation in the educational program offered by a public school, the school
must take affirmative steps to rectify the language deficiency in order to open its
instructional program.
Public schools must implement procedures that ensure that all LEP students are
identified, evaluated, and provided necessary alternative language services by
6
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properly trained staff and that the educational program is periodically evaluated to
ensure that it is effective in meeting the educational needs of LEP students. These
legal requirements are explained in OCR policy documents and technical
assistance materials. Public charter schools need to become familiar with the
details of these legal requirements.
There are, of course, many different kinds of programs offered by public charter
schools. For technical assistance regarding how the program being offered by a
charter school can comply with Federal civil rights requirements to serve LEP
students, you should contact the OCR enforcement office that serves your state.
&
Under Title VI, what must a public charter school do to ensure that parents who
are not proficient in English are provided with appropriate and sufficient
information about school activities?
A:
As with other public schools, charter schools must effectively notify parents who
are not proficient in English of school activities that are called to the attention of
other parents. Such a notice, to be effective, may have to be provided in a
language other than English.
O:
How may charter schools pay for the provision of appropriate educational services
to LEP students?
A:
The entity responsible for the operation of the public charter school may want to
consider applying for Title VII funds from ED's Office of Bilingual Education and
Minority Languages Affairs. However, if an independent governing board is
responsible for the operation of a public charter school, the charter school
must constitute an LEA under the Elementary and Secondary Education Act of
1965 in order for the charter school to receive Title VII funds as an LEA.
Many public charter schools receive Title I funding from ED's Office of
Elementary and Secondary Education. Qualifying charter schools would receive-
Title I funds directly from the SEA if the charter school is treated as an LEA or
from the school district if the charter school is treated as a public school within an
LEA. Title I funds also may be used to meet the educational needs of LEP
students. In addition, a public charter school could be assisted in meeting its
obligations through such means as joining with other charter schools or working
with LEAs to share qualified staff. It is important to note that a public charter
school, like other public schools, cannot excuse its failure to provide appropriate
educational services to LEP students because of inadequate financial resources.
Site Selection
Q:
When selecting the location of facilities that will house public charter schools,
what are the applicable federal civil rights requirements?
7
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A:
The site or location of a public charter school should not result in excluding or
limiting enrollment on the basis of race, color, or national origin.
With respect to individuals with disabilities, recipients are prohibited from
selecting a site facility that is not readily accessible. The duty not to select an
inaccessible site also imposes a duty on an applicant for federal financial
assistance, or a recipient of such assistance, to evaluate accessibility when
selecting a site. The term "readily accessible" is not the equivalent of an absolute
barrier-free standard; the phrase incorporates a level of reasonableness. The
"readily accessible" standard also does not foreclose flexibility in application. For
example, a recipient may make an inaccessible facility readily accessible, but this
must be accomplished within a reasonable period of time of acquisition.
Program Accessibility for Individuals with Disabilities
ä
Are public charter schools responsible for ensuring that their programs and
activities are accessible to persons with disabilities?
A:
Yes. Public charter schools are subject to the same program accessibility
requirements as other public schools. Program accessibility requirements often
involve complex issues. For assistance in understanding program accessibility
requirements, you may want to review OCR technical assistance materials, which
are available from the OCR enforcement office that serves your state.
&
Are there different legal requirements that apply to public charter schools located
in older facilities as compared to newer facilities?
A:
Yes, the legal requirements are different. Under the federal civil rights laws, for
older facilities (which are referred to as "existing facilities" in the Section 504 and
Title II regulations), the legal standard is that programs and activities, when
viewed in their entirety, must be readily accessible to and usable by individuals
with disabilities. Both the Section 504 and Title II regulations permit
considerable flexibility in how the legal standard for older facilities can be met.
Structural changes are not required in older facilities if nonstructural methods are
effective in achieving program accessibility.
For new construction and alterations, under Section 504 and Title II, the legal
standard is that a new or altered facility (or the part that is new or altered) must be
readily accessible to and usable by individuals with disabilities. The new
construction and alterations requirements focus on providing physical access to
buildings and facilities rather than on providing access to programs and services.
Section 504 and Title II have different time frames regarding what constitutes
existing facilities and new construction and alterations. Under Section 504, an
8
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existing facility is one that was in existence or in the process of construction
before June 3, 1977, the effective date of the regulation. Under Section 504, new
construction means ground-breaking took place on or after June 3, 1977. Under
Title II, an existing facility is one that was in existence or construction was
commenced after January 26, 1992, the effective date of the regulation. Under
Title II, new construction refers to any building where construction commenced
after January 26, 1992.
It is important to note that, under Section 504, where a facility (constructed or
altered post-1977) is acquired by a recipient after design and construction or
alterations have been made, the requirements for new construction and alterations
are not applicable unless the facility was constructed or altered by or for the
recipient. Likewise, under Title II, where a facility (constructed or altered post-
1992) is acquired by a public entity after design and construction or alterations
have been made, the requirements for new construction and alterations are not
applicable unless the facility was constructed or altered by or for the recipient.
OF
What are the program accessibility requirements that apply if the public charter
school leases its space from another entity?
A:
Leased facilities are subject to the program accessibility requirements for existing
facilities or new construction and alterations, depending on the date that the
buildings were constructed or altered. The requirements for existing facilities
and new construction and alterations are discussed above.
Provision of a Free Appropriate Public Education to Students with
Disabilities
ä
Must students with disabilities have an opportunity to participate in public school
choice programs?
A:
Yes. A state or local government agency must provide students with disabilities,
consistent with their individual educational needs, a range of choice in educational
programs and activities that is comparable to that offered to students without
disabilities. This includes charter schools, magnet schools, and other schools
offering different curricula or instructional techniques.
ä
What is the relationship of Section 504 and Title II to the Individuals with
Disabilities Education Act (IDEA)?
A:
Section 504, Title II, and IDEA are related federal laws but are different in many
important ways. Section 504 and Title II are civil rights laws that protect persons
with disabilities from discrimination on the basis of disability. Section 504 and
Title II are enforced by OCR. The IDEA is a federal statute that provides funds to
SEAs and LEAs to help educate children with disabilities and is administered by
the Office of Special Education and Rehabilitative Services (OSERS) of the U.S.
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Department of Education. The IDEA has its own separate requirements that are
not discussed in this publication; this publication focuses only on Section 504 and
Title П. For information on IDEA and its requirements, contact OSERS' Office
of Special Education Programs.
Ö
What are the requirements for the education of students with disabilities who are
protected by Section 504 and Title П?
A:
Under Section 504 and its regulations, children with disabilities in public
elementary and secondary education programs operated by recipients of federal
financial assistance are entitled to a free appropriate public education (FAPE).
Under Title II, children with disabilities in a public charter school, regardless of
whether the school is a recipient of federal assistance, are also entitled to FAPE.
OCR interprets Title II and its prohibition against discrimination on the basis of
disability in programs and activities of State and local governmental entities as
consistent with Section 504 and its regulations.
Under the Section 504 regulations, the provision of FAPE encompasses several
substantive and procedural requirements. Among these requirements is that a
student with a disability receive appropriate regular or special education and
related aids or services that are designed to meet the individual needs of the
student as adequately as the needs of nondisabled students are met.
In general, one method that satisfies the FAPE obligation under Section 504 and
Title II is compliance with the requirements of IDEA. As noted above, the Office
of Special Education Programs has information on IDEA's requirements.
Q:
Is a student with a disability required to be educated with students without
disabilities?
A:
The education of students with disabilities must be designed to meet their
individual needs. Thus, classroom assignments of students with disabilities are
governed by the general principle that a student with a disability must be educated
with nondisabled students to the maximum extent appropriate to the needs of that
student. A student with a disability may be placed in another setting only if
educating the child in the regular educational environment, even with the use of
supplementary aids and services, cannot be achieved satisfactorily. The student's
placement team is responsible for selecting the setting that satisfies these
requirements.
Q:
Is there flexibility in meeting the Section 504 and Title II requirements for
children with disabilities attending public charter schools?
A:
Yes. As noted above, one way to meet the FAPE requirements of Section 504 and
Title II is to comply with the FAPE requirements of the IDEA. Among other
things, the IDEA allows a State to designate some other entity as the agency
10
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responsible for meeting the IDEA requirements for children with disabilities
attending a public charter school. This flexibility is also available for meeting the
Section 504 and Title II FAPE requirements. It should be noted that, if a State
designates another entity as being responsible for providing FAPE to children
with disabilities attending the charter school, that entity's duties include the
obligation to provide FAPE in the charter school as long as the charter school is
an appropriate placement for the student. As described above, a student with a
disability must be educated in the placement that is appropriate to meet his or her
individual needs and constitutes the least restrictive environment.
Ö
What action should be taken with regard to a student who is suspected of having a
disability?
A:
Under Section 504 and Title II, an individual with a disability is an individual
who either (i) has a physical or mental impairment that substantially limits one or
more major life activities (such as learning), (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment.
Under Section 504 and Title II, a student with a disability who needs or is
believed to need special education or related services because of a disability must
be evaluated according to prescribed procedures. A child must be evaluated
before initial placement as well as before any subsequent significant change in
placement. Further, students with disabilities must be reevaluated on a periodic
basis. As noted above, compliance with the relevant IDEA requirements would
constitute compliance with these Section 504 and Title II requirements.
Ö
What other rights and responsibilities are included with the provision of FAPE?
A:
Under Section 504 and Title II, students with disabilities and their parents or
guardians are entitled to due process rights concerning identification, evaluation,
and placement. Due process includes notice and the right to request an impartial
hearing. In addition, a student with a disability must have an equal opportunity to
participate in nonacademic and extracurricular services and activities. In general,
compliance with the relevant IDEA requirements would constitute compliance
with these Section 504 and Title II requirements.
ä
Could a child be covered under Section 504 and Title II but not be eligible to
receive services under Part B of the IDEA?
A:
Yes. Although this is a rare occurrence, there are students with disabilities who
are covered only by Section 504 and Title II, but who are not eligible to receive
services under Part B of the IDEA. For example, a child with juvenile rheumatoid
arthritis who requires the periodic administration of medication during the school
day, but does not need any special education services, may be covered by Section
504 and Title II, even though the child is not eligible for services under Part B of
the IDEA.
11
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As noted above, the IDEA is administered by the Department's Office of Special
Education, while Section 504 and Title II are enforced by OCR. Under certain
circumstances, public charter schools may be eligible for IDEA funds. For further
information about IDEA requirements, contact the Office of Special Education
Programs.
a:
How can I learn more about the FAPE requirements of Section 504 and Title II?
A:
These answers are intended only as a general introduction to the FAPE
requirements. The FAPE requirements cover many specific issues in more detail;
you may become familiar with them by reviewing the Section 504 and Title II
regulations and OCR technical assistance resources available through the OCR
enforcement office that serves your state.
12
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Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
http://www.ed.gov/offices/OCR
Washington, D.C. 20202-1100
Customer Service #: 1-800-421-3481
EASTERN DIVISION
MIDWESTERN DIVISION
Connecticut, Maine, Massachusetts,
Illinois, Indiana, Minnesota, Wisconsin
New Hampshire, Rhode Island, Vermont
Office for Civil Rights, Chicago Office
Office for Civil Rights, Boston Office
U.S. Department of Education
U.S. Department of Education
111 North Canal Street, Suite 1053
J. W. McCormack Post Office and Courthouse
Chicago, IL 60606-7204 (312) 886-8434
Room 222, 01-0061
FAX (312) 353-4888; TDD (312) 353-2540
Boston, MA 02109-4557 (617) 223-9662
FAX (617) 223-9669; TDD (617) 223-9695
Michigan, Ohio
Office for Civil Rights, Cleveland Office
New Jersey, New York, Puerto Rico, Virgin
U.S. Department of Education
Islands
600 Superior Avenue East
Office for Civil Rights, New York Office
Bank One Center, Room 750
U.S. Department of Education
Cleveland. OH 44114-2611 (216) 522-4970
75 Park Place, 14th Floor
FAX (216) 522-2573; TDD (216) 522-4944
New York, NY 10007-2146 (212) 637-6466
FAX (212) 264-3803; TDD (212) 637-0478
lowa, Kansas, Missouri, Nebraska,
North Dakota, South Dakota
Delaware, Maryland, Kentucky, Pennsylvania,
Office for Civil Rights, Kansas City Office
West Virginia
U.S. Department of Education
Office for Civil Rights, Philadelphia Office
10220 North Executive Hills Boulevard
U.S. Department of Education
8th Floor, 07-6010
The Wanamaker Building
Kansas City, MO 64153-1367 (816)880-4200
100 Penn Square East. Suite 515
FAX (816) 891-0644; TDD (816) 891-0582
Philadelphia, PA 19107 (215) 656-8541
FAX (215) 656-8605; TDD (215) 656-8604
WESTERN DIVISION
SOUTHERN DIVISION
Artzona, Colorado, Montana, New Mexico,
Utah, Wyoming
Alabama, Florida, Georgia, South Carolina,
Office for Civil Rights, Denver Office
Tennessee
U.S. Department of Education
Office for Civil Rights, Atlanta Office
Federal Building, Suite 310, 08-7010
U.S. Department of Education
1244 Speer Boulevard
61 Forsyth Street, S.W., Suite 19T70
Denver, CO 80204-3582 (303) 844-5695
Atlanta, GA 30303 (404) 562-6350
FAX (303) 844-4303; TDD (303) 844-3417
FAX (404) 562-6455; TDD (404) 562-6454
California
Arkansas, Loulsiana, Mississippi, Oklahoma,
Office for Civil Rights, San Francisco Office
Texas
U.S. Department of Education
Office for Clvd Rights, Dallas Office
Old Federal Building
U.S. Department of Education
50 United Nations Plaza, Room 239
1999 Bryan Street, Suite 2600, 06-5010
San Francisco, CA 94102-4102 (415) 556-4275
Dallas, TX 75201 (214) 880-2459
FAX (415) 437-7783 TDD (415) 437-7786
FAX (214) 880-3082: TDD (214) 880-2456
Alaska, Hawall, Idaho, Nevada, Oregon,
North Carolina, Virginia, Washington, D.C.
Washington, Pacific Region
Office for Civil Rights, District of Columbia Office
Office for Civil Rights, Seattle Office
U.S. Department of Education
U.S. Department of Education
915 Second Avenue, Room 3310
1100 Pennsylvania Ave. N.W., Room 316
Seattle, WA 98174-1099 (206) 220-7900
P.O. Box 14620
FAX (206) 220-7887; TDD (206) 220-7907
Washington, D.C. 20044-4520
(202) 208-2545; FAX (202) 208-7797
TDD (202) 208-7741
TOTAL P. 15
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QUESTIONS
AND
ANSWERS:
Application of Federal
Civil Rights Laws to
Public Charter Schools
U.S. Department of Education
STATEMENT OF OFFICIAL STATION
Office for Civil Rights
UNITED STATES OR AMERICA
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QUESTIONS AND ANSWERS ON THE APPLICATION OF FEDERAL
CIVIL RIGHTS LAWS TO PUBLIC CHARTER SCHOOLS
One of the fastest growing areas of public school reform is the charter schools movement.
President Clinton has called for the creation of 3,000 charter schools by early in the next century
as a vehicle for promoting choice and innovation within public school systems. Charter schools
are public schools under contract -- or charter - between a public agency and groups of parents,
teachers, community leaders or others who want to create alternatives and choice within the
public school system. In exchange for greater accountability for student achievement, charter
schools are given expanded flexibility with respect to statutory and regulatory requirements.
However, charter schools remain subject to federal civil rights laws.
This "Questions and Answers" Handout has been prepared by the Office for Civil Rights (OCR)
in the U.S. Department of Education to assist charter schools in meeting their obligations under
federal civil rights laws in the areas of recruitment and admissions, provision of appropriate
services to limited English proficient (LEP) students, and provision of a free appropriate public
education and program accessibility to students with disabilities. OCR is responsible for
enforcing civil rights laws that protect students and other participants from discrimination on the
basis of race, color, national origin, sex, disability, and age in programs and activities that receive
federal financial assistance. These laws are: 1) Title VI of the Civil Rights Act of 1964, which
prohibits discrimination on the basis of race, color, and national origin; 2) Title IX of the
Education Amendments of 1972, which prohibits discrimination on the basis of sex; 3) Section
504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability;
and 4) the Age Discrimination Act of 1975, which prohibits discrimination on the basis of age.
OCR also is responsible for enforcing Title II of the Americans with Disabilities Act of 1990,
which prohibits discrimination on the basis of disability by public entities, including public
charter schools and public school districts, regardless of whether they receive federal financial
assistance.
These Questions and Answers are not intended to provide all of the information that may be
needed to ensure compliance with civil rights laws. Rather, our intent is to highlight key
requirements. Details of these requirements are described in OCR regulations and policy
documents and applicable court decisions. For more detailed information about the civil rights
requirements addressed in these Questions and Answers, as well as other requirements under the
federal civil rights laws, please contact the OCR enforcement office that serves your state. A list
of the addresses and telephone numbers of the OCR enforcement offices is attached.
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Entity Responsible for Civil Rights Compliance
Q:
Which legal entity is responsible for ensuring that a public charter school is
complying with federal civil rights laws?
A:
The recipient of federal financial assistance is responsible for ensuring that a
public charter school is complying with federal civil rights laws. Where a charter
school is part of a local educational agency (LEA), the LEA is responsible for
ensuring that the charter school is complying with the requirements of the federal
civil rights laws. Where the charter school is considered a "local educational
agency" under the state charter schools law, then the charter school itself is
responsible for ensuring compliance with the federal civil rights laws. It should
be noted that where a charter school receives funds under the federal Public
Charter Schools Program, the state education agency and any other authorized
chartering agency also would be responsible for ensuring that the public charter
school is complying with federal civil rights laws. In addition, the state
educational agency (SEA) is responsible in all cases for having methods of
administration that ensure nondiscrimination.
Effect of Existing Desegregation Plans on Public Charter Schools
&
What effect does an existing desegregation plan for a school district have on the
establishment or operation of a public charter school in that district?
A:
When a public charter school is being established in a jurisdiction that is under a
Title VI desegregation plan approved by OCR, a court order requiring
desegregation, or a desegregation plan approved by any other administrative body
of competent jurisdiction under state law, the charter school must be established
and operate in a manner that is consistent with the desegregation plan or order.
Generally, the establishment of a public charter school in a jurisdiction that is
required to desegregate may not substantially impede or retard the extent of
required desegregation. In jurisdictions required to desegregate, the establishment
of a public charter school would be treated the same as the establishment of any
other public school.
Before a charter school may be established in a jurisdiction that is under a Title VI
desegregation plan approved by OCR, OCR must approve the establishment of
the charter school as being consistent with the applicable OCR-approved
desegregation plan, which may involve amending the Title VI desegregation plan.
Where a charter school is being established in a jurisdiction with court-ordered
desegregation or where desegregation is required pursuant to state law by an
administrative agency of competent jurisdiction, the LEA or the charter school's
governing board, if the charter school is governed by a board that is independent
of the LEA, should review the required desegregation plan to determine whether
establishment of the charter school is consistent with the desegregation plan and
whether approval by the entity requiring desegregation is needed.
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In order to receive planning funds under the federal Public Charter Schools
Program, an applicant for funds must certify either that the proposed charter
school will not be located in a jurisdiction that is required to desegregate or that
the charter school will take steps during the period of its planning grant to develop
an application for approval under any applicable desegregation plan or order. The
Secretary of Education urges charter schools seeking approval under a
desegregation plan or order to submit their applications in sufficient time to
ensure approval prior to the date the charter school is scheduled to open. A
charter school is precluded from receiving implementation funds under the federal
Public Charter Schools Program until it has actually received approval under the
desegregation plan or order.
Recruitment and Admissions
Ö
What steps should a public charter school take in order to be in compliance with
federal civil rights laws with respect to the recruitment of students?
A:
Consistent with Title VI, Title IX, Section 504, and Title II, a public charter
school must not recruit in a manner that discriminates against students of a
particular race, color, national origin, or sex, or students with disabilities.
However, charter schools may make additional efforts to encourage applications
from underrepresented groups.
Examples of ways that charter schools may recruit minority and LEP students are
as follows: 1) conduct presentations or meetings with parent teacher associations
or organizations at schools with a large number of minority students; 2) schedule
meetings or consultations with minority community groups; 3) indicate in
promotional materials that alternative language services will be provided for LEP
students; 4) indicate in such materials that a free or low cost lunch program is
available for eligible students; 5) disseminate information about the charter school
in newspapers and other publications and on radio stations that serve minority
communities; 6) promote the charter school in shopping malls and go door to door
with promotional literature in minority communities; and 7) emphasize in
meetings and promotional materials that students from all segments of the
community will be welcome at the charter school.
Ö
What steps does a public charter school have to take in its recruitment efforts with
respect to parents who are limited English proficient?
A:
A public charter school must ensure that parents who are not proficient in English
are provided with appropriate and sufficient information about the charter school.
This information must be effectively communicated to parents who are not
proficient in English. For example, in those communities that have significant
numbers of LEP parents, if outreach materials are made available to parents, these
materials may have to be available in languages other than English
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to ensure effective communication with LEP parents. If the charter school
conducts informational meetings with parents or community groups in local
communities that include significant numbers of individuals who have limited
English proficiency, then translation services should be available in order to
ensure effective communication.
Q:
What steps does a public charter school have to take in its recruitment efforts with
respect to parents with disabilities?
A:
A public charter school must ensure that information about the charter school is
communicated as effectively to parents with disabilities as to other parents.
Appropriate auxiliary aids and services must be made available whenever they are
necessary to ensure effective communication for parents with disabilities. For
example, if outreach materials are made available on request to parents, these
materials should be made available in such alternative formats as Braille or large
print for parents with visual disabilities. If the charter school conducts
informational meetings with parents or community groups, qualified interpreters
should be provided on request for individuals with hearing disabilities.
Ö
What steps should a public charter school take in order to ensure that all students,
regardless of race, color, and national origin, are treated in a nondiscriminatory
manner in admissions?
A:
Public charter schools may not discriminate on the basis of race, color, or national
origin in determining whether the applicant satisfies any admissions requirement.
Charter schools receiving federal Public Charter Schools Program funds may set
minimum eligibility criteria for admission to the charter school, and thus for
inclusion in the lottery, only to the extent that such criteria: (1) further the
statutory purposes of the Public Charter Schools Program; (2) are directly
related to the educational mission of the charter school: and (3) are consistent with
federal civil rights laws. Regardless of whether charter schools receive federal
Public Charter Schools Program funds, any admissions criteria must be permitted
by state law and the school's charter and must be nondiscriminatory on their face
and applied in a nondiscriminatory manner. If these criteria have a disparate
impact on the basis of race, color, or national origin, the criteria must be necessary
to meet the school's educational objectives and there must be no feasible
älternative admissions criteria that have less disparate impact and meet the
school's educational objectives. For more detailed information about the
circumstances under which charter schools receiving federal Public Charter
Schools Program funds may set minimum eligibility criteria for admission, see
Public Charter Schools Program: Non-Regulatory Guidance.
Many state charter school laws also have specific provisions that are designed to
ensure that charter schools are open to all students. For example, consistent with
the federal Public Charter Schools Program, a significant number of states
specifically require that public charter schools use a lottery system for admissions
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purposes where there are more applicants than spaces available. A few state
charter school laws contain provisions designed to ensure that transportation
services are provided to low-income students attending such schools.
≈:
Under Section 504 and Title II, what steps should a public charter school take in
order to ensure that students with disabilities are treated in a nondiscriminatory
manner in admissions?
A:
Students with disabilities may not be excluded from admission to a public charter
school solely on the basis of their disability. In applying admissions criteria to
students with disabilities, individualized determinations must be made as to
whether a particular student meets the criteria, and those determinations must be
made on a nondiscriminatory basis. For example, if students must take a written
examination as part of the admissions process to a public charter school, a student
who is blind would have to be provided appropriate accommodations in order to
take the test.
Civil Rights Funding Requirements
ä
What civil rights requirements apply to the funding of charter schools?
A:
States have broad discretion in determining how and from what revenue sources
to fund charter schools. However, SEAs are responsible under civil rights
regulations to ensure that their methods of administration for overseeing and
supervising the provision of education under state law do not result in
discrimination based on race, national origin, or sex. Part of that obligation is to
ensure that state laws and procedures for financing public education do not have
the effect of racial or sex discrimination based on the student composition by race
and sex of LEAs. This obligation extends to the method of funding charter
schools that are considered LEAs under state charter school laws. Thus, if charter
schools enroll student bodies that vary significantly in terms of their race, national
origin, or sex from that of other LEAs in the State, and the State's methods of
funding charter schools result in disparate educational resources for charter
schools compared to other LEAs, there would be a possible claim that the State is
in violation of Title VI or Title IX. For example, some charter schools that are
considered LEAs under a state charter school law enroll a higher proportion of
minority students than other LEAs; if these charter school LEAs receive
significantly lower levels of public financing per student than other LEAs in the
State with corresponding deficiencies in educational resources for students, that
could be a basis for a claim against the State for violating Title VI. The State
could defend against such a claim by showing that any such disparities are
educationally justified. If it succeeded in doing so, there would be a question
regarding whether there is a less discriminatory alternative funding method that
would satisfactorily meet the State's educational objectives. These issues would
need to be examined on a case by case basis.
-(w.51
5.
rason
to
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The above-described standards do not assume any intent on the part of the State to
discriminate, but rather apply a disparate impact analysis of discrimination
provided for in Title VI and Title IX regulations. In addition, if it were shown that
the State foresaw these disparate impacts and continued to under-fund charter
schools, there would also be a question of possible intentional discrimination
under these laws.
These principles would apply as well to methods used by LEAs to allocate public
funds among charter schools and other public schools within their districts.
Discrimination on the Basis of Sex
Ö
Are single sex charter schools permissible?
A:
The Title IX regulation does not prohibit non-vocational elementary and
secondary single sex schools. Under Title IX, where there is a public school for
one sex, the other sex must be provided with-somparable courses, services, and
facilities pursuant to the same policies and criteria for admission. Therefore, if
there is a single sex charter school for students of one sex, students of the other
sex must be provided a comparable educational opportunity.
Provision of Appropriate Services to Students with Limited English
Proficiency
Ö
May a public charter school exclude from admission students who have limited
English language proficiency?
A:
A public charter school may not categorically exclude students based on their
national origin from participating in a public charter school's program. If there are
questions about the legality of the specific requirements of a program being
offered by a charter school that may affect LEP students, please contact the OCR
enforcement office that serves your state.
Ö
Do the requirements to provide appropriate services to LEP students that apply
when the LEP student attends any other public school also apply when the LEP
student attends a public charter school?
A:
Yes. Title VI prohibits the denial of equal access to education for a national
origin minority child. Where the inability to speak and understand the English
language excludes a national origin minority group child from effective
participation in the educational program offered by a public school, the school
must take affirmative steps to rectify the language deficiency in order to open its
instructional program.
Public schools must implement procedures that ensure that all LEP students are
identified, evaluated, and provided necessary alternative language services by
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properly trained staff and that the educational program is periodically evaluated to
ensure that it is effective in meeting the educational needs of LEP students. These
legal requirements are explained in OCR policy documents and technical
assistance materials. Public charter schools need to become familiar with the
details of these legal requirements.
There are, of course, many different kinds of programs offered by public charter
schools. For technical assistance regarding how the program being offered by a
charter school can comply with Federal civil rights requirements to serve LEP
students, you should contact the OCR enforcement office that serves your state.
&
Under Title VI, what must a public charter school do to ensure that parents who
are not proficient in English are provided with appropriate and sufficient
information about school activities?
A:
As with other public schools, charter schools must effectively notify parents who
are not proficient in English of school activities that are called to the attention of
other parents. Such a notice, to be effective, may have to be provided in a
language other than English.
Q:
How may charter schools pay for the provision of appropriate educational services
to LEP students?
A:
The entity responsible for the operation of the public charter school may want to
consider applying for Title VII funds from ED's Office of Bilingual Education and
Minority Languages Affairs. However, if an independent governing board is
responsible for the operation of a public charter school, the charter school
must constitute an LEA under the Elementary and Secondary Education Act of
1965 in order for the charter school to receive Title VII funds as an LEA.
Many public charter schools receive Title I funding from ED's Office of
Elementary and Secondary Education. Qualifying charter schools would receive-
Title I funds directly from the SEA if the charter school is treated as an LEA or
from the school district if the charter school is treated as a public school within an
LEA. Title I funds also may be used to meet the educational needs of LEP
students. In addition, a public charter school could be assisted in meeting its
obligations through such means as joining with other charter schools or working
with LEAs to share qualified staff. It is important to note that a public charter
school, like other public schools, cannot excuse its failure to provide appropriate
educational services to LEP students because of inadequate financial resources.
Site Selection
a:
When selecting the location of facilities that will house public charter schools,
what are the applicable federal civil rights requirements?
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A:
The site or location of a public charter school should not result in excluding or
limiting enrollment on the basis of race, color, or national origin.
With respect to individuals with disabilities, recipients are prohibited from
selecting a site facility that is not readily accessible. The duty not to select an
inaccessible site also imposes a duty on an applicant for federal financial
assistance, or a recipient of such assistance, to evaluate accessibility when
selecting a site. The term "readily accessible" is not the equivalent of an absolute
barrier-free standard; the phrase incorporates a level of reasonableness. The
"readily accessible" standard also does not foreclose flexibility in application. For
example, a recipient may make an inaccessible facility readily accessible, but this
must be accomplished within a reasonable period of time of acquisition.
Program Accessibility for Individuals with Disabilities
&
Are public charter schools responsible for ensuring that their programs and
activities are accessible to persons with disabilities?
A:
Yes. Public charter schools are subject to the same program accessibility
requirements as other public schools. Program accessibility requirements often
involve complex issues. For assistance in understanding program accessibility
requirements, you may want to review OCR technical assistance materials, which
are available from the OCR enforcement office that serves your state.
&
Are there different legal requirements that apply to public charter schools located
in older facilities as compared to newer facilities?
A:
Yes, the legal requirements are different. Under the federal civil rights laws, for
older facilities (which are referred to as "existing facilities" in the Section 504 and
Title II regulations), the legal standard is that programs and activities, when
viewed in their entirety, must be readily accessible to and usable by individuals
with disabilities. Both the Section 504 and Title II regulations permit
considerable flexibility in how the legal standard for older facilities can be met.
Structural changes are not required in older facilities if nonstructural methods are
effective in achieving program accessibility.
For new construction and alterations, under Section 504 and Title II, the legal
standard is that a new or altered facility (or the part that is new or altered) must be
readily accessible to and usable by individuals with disabilities. The new
construction and alterations requirements focus on providing physical access to
buildings and facilities rather than on providing access to programs and services.
Section 504 and Title II have different time frames regarding what constitutes
existing facilities and new construction and alterations. Under Section 504, an
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existing facility is one that was in existence or in the process of construction
before June 3, 1977, the effective date of the regulation. Under Section 504, new
construction means ground-breaking took place on or after June 3, 1977. Under
Title II, an existing facility is one that was in existence or construction was
commenced after January 26, 1992, the effective date of the regulation. Under
Title II, new construction refers to any building where construction commenced
after January 26, 1992.
It is important to note that, under Section 504, where a facility (constructed or
altered post-1977) is acquired by a recipient after design and construction or
alterations have been made, the requirements for new construction and alterations
are not applicable unless the facility was constructed or altered by or for the
recipient. Likewise, under Title II, where a facility (constructed or altered post-
1992) is acquired by a public entity after design and construction or alterations
have been made, the requirements for new construction and alterations are not
applicable unless the facility was constructed or altered by or for the recipient.
OF
What are the program accessibility requirements that apply if the public charter
school leases its space from another entity?
A:
Leased facilities are subject to the program accessibility requirements for existing
facilities or new construction and alterations, depending on the date that the
buildings were constructed or altered. The requirements for existing facilities
and new construction and alterations are discussed above.
Provision of a Free Appropriate Public Education to Students with
Disabilities
&
Must students with disabilities have an opportunity to participate in public school
choice programs?
A:
Yes. A state or local government agency must provide students with disabilities,
consistent with their individual educational needs, a range of choice in educational
programs and activities that is comparable to that offered to students without
disabilities. This includes charter schools, magnet schools, and other schools
offering different curricula or instructional techniques.
Q:
What is the relationship of Section 504 and Title II to the Individuals with
Disabilities Education Act (IDEA)?
A:
Section 504, Title II, and IDEA are related federal laws but are different in many
important ways. Section 504 and Title II are civil rights laws that protect persons
with disabilities from discrimination on the basis of disability. Section 504 and
Title II are enforced by OCR The IDEA is a federal statute that provides funds to
SEAs and LEAs to help educate children with disabilities and is administered by
the Office of Special Education and Rehabilitative Services (OSERS) of the U.S.
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Department of Education. The IDEA has its own separate requirements that are
not discussed in this publication; this publication focuses only on Section 504 and
Title П. For information on IDEA and its requirements, contact OSERS' Office
of Special Education Programs.
&
What are the requirements for the education of students with disabilities who are
protected by Section 504 and Title П?
A:
Under Section 504 and its regulations, children with disabilities in public
elementary and secondary education programs operated by recipients of federal
financial assistance are entitled to a free appropriate public education (FAPE).
Under Title II, children with disabilities in a public charter school, regardless of
whether the school is a recipient of federal assistance, are also entitled to FAPE.
OCR interprets Title II and its prohibition against discrimination on the basis of
disability in programs and activities of State and local governmental entities as
consistent with Section 504 and its regulations.
Under the Section 504 regulations, the provision of FAPE encompasses several
substantive and procedural requirements. Among these requirements is that a
student with a disability receive appropriate regular or special education and
related aids or services that are designed to meet the individual needs of the
student as adequately as the needs of nondisabled students are met.
In general, one method that satisfies the FAPE obligation under Section 504 and
Title II is compliance with the requirements of IDEA. Às noted above, the Office
of Special Education Programs has information on IDEA's requirements.
ä
Is a student with a disability required to be educated with students without
disabilities?
A:
The education of students with disabilities must be designed to meet their
individual needs. Thus, classroom assignments of students with disabilities are
governed by the general principle that a student with a disability must be educated
with nondisabled students to the maximum extent appropriate to the needs of that
student. A student with a disability may be placed in another setting only if
educating the child in the regular educational environment, even with the use of
supplementary aids and services, cannot be achieved satisfactorily. The student's
placement team is responsible for selecting the setting that satisfies these
requirements.
Q:
Is there flexibility in meeting the Section 504 and Title II requirements for
children with disabilities attending public charter schools?
A:
Yes. As noted above, one way to meet the FAPE requirements of Section 504 and
Title II is to comply with the FAPE requirements of the IDEA. Among other
things, the IDEA allows a State to designate some other entity as the agency
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responsible for meeting the IDEA requirements for children with disabilities
attending a public charter school. This flexibility is also available for meeting the
Section 504 and Title II FAPE requirements. It should be noted that, if a State
designates another entity as being responsible for providing FAPE to children
with disabilities attending the charter school, that entity's duties include the
obligation to provide FAPE in the charter school as long as the charter school is
an appropriate placement for the student. As described above, a student with a
disability must be educated in the placement that is appropriate to meet his or her
individual needs and constitutes the least restrictive environment.
Ö
What action should be taken with regard to a student who is suspected of having a
disability?
A:
Under Section 504 and Title II, an individual with a disability is an individual
who either (i) has a physical or mental impairment that substantially limits one or
more major life activities (such as learning), (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment.
Under Section 504 and Title II, a student with a disability who needs or is
believed to need special education or related services because of a disability must
be evaluated according to prescribed procedures. A child must be evaluated
before initial placement as well as before any subsequent significant change in
placement. Further, students with disabilities must be reevaluated on a periodic
basis. As noted above, compliance with the relevant IDEA requirements would
constitute compliance with these Section 504 and Title II requirements.
O
What other rights and responsibilities are included with the provision of FAPE?
A:
Under Section 504 and Title II, students with disabilities and their parents or
guardians are entitled to due process rights concerning identification, evaluation,
and placement. Due process includes notice and the right to request an impartial
hearing. In addition, a student with a disability must have an equal opportunity to
participate in nonacademic and extracurricular services and activities. In general,
compliance with the relevant IDEA requirements would constitute compliance
with these Section 504 and Title II requirements.
Q:
Could a child be covered under Section 504 and Title II but not be eligible to
8,
receive services under Part B of the IDEA?
A:
Yes. Although this is a rare occurrence, there are students with disabilities who
are covered only by Section 504 and Title II, but who are not eligible to receive
services under Part B of the IDEA. For example, a child with juvenile rheumatoid
arthritis who requires the periodic administration of medication during the school
day, but does not need any special education services, may be covered by Section
504 and Title II, even though the child is not eligible for services under Part B of
the IDEA.
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As noted above, the IDEA is administered by the Department's Office of Special
Education, while Section 504 and Title II are enforced by OCR. Under certain
circumstances, public charter schools may be eligible for IDEA funds. For further
information about IDEA requirements, contact the Office of Special Education
Programs.
ä
How can I learn more about the FAPE requirements of Section 504 and Title II?
A:
These answers are intended only as a general introduction to the FAPE
requirements. The FAPE requirements cover many specific issues in more detail;
you may become familiar with them by reviewing the Section 504 and Title II
regulations and OCR technical assistance resources available through the OCR
enforcement office that serves your state.
12
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Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W.
http://www.ed.gov/offices/OCR
Washington, D.C. 20202-1100
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TOTAL P. 15
Andy Rotherham
09/09/99 04:55:14 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP@EOP
CC:
Subject: charter school guidance
I'm having a meeting with Peter Rundlett on Tuesday at 3PM on the charter school guidance about
religion. I'd like to touch base with you beforehand and also have you in the meeting if you can make it.
Is there a time that works for you tomorrow or Monday?
Andy
MEMO:
TO:
ANITA HODGKISS
MAY 3, 1999
DEPUTY ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
FROM: JEREMIAH GLASSMAN
ACTING CHIEF
EDUCATIONAL OPPORTUNITIES SECTION
SUBJECT: CHARTER SCHOOLS
As you are aware, Clint Bolick has criticized the Department
for the positions that it has taken on proposed charter schools
in four school districts. Those Districts are East Baton Rouge,
Louisiana, Monroe, Louisiana, St. Helena Parish, Louisiana, and
Georgetown, South Carolina. Below we briefly review the proposed
charter schools, and what we have done in each case.
East Baton Rouge, Louisiana
This is a case in which the Legal Defense Fund is a party
and AAAG Lee is recused.
This is a longstanding school desegregation case. In recent
years, the parties entered into a consent decree which permitted
the district to modify it desegregation plan and rezone some
schools to be neighborhood schools. The district agreed to
enhance many of the one race schools and also to open magnet
schools and programs. The district has not complied with the
consent decree, partly because it claims not to have sufficient
funds.
The district recently passed a tax levy, and we have agreed
that the district should go forth with many of the technological
improvements and salary increases included in the levy. However,
we do have a dispute with the district over the proposed
construction projects. The district proposes to increase the
size of segregated schools and has not considered integrative
options. We are attempting to resolve our differences amicably.
In February, 1998, we were informed by the district that it
had received an application for the establishment of the
Children's Charter School and that the Board would likely approve
the school at its next meeting. We reminded counsel that court
approval would be necessary. We also met with the administrators
of the proposed charter school on several occasions to discuss
how the school would operate in light of the extant court order,
and we requested information to ascertain the potential impact of
the charter on desegregation in the East Baton Rouge school
district. These discussion occurred sporadically for several
months and the charter school administrators did not provide all
of the information requested.
It was the charter school's position that as a charter
school it is exempt from most regulation and therefore, should be
allowed to operate without regard to its possible effect on the
East Baton Rouge schools so long as it did not discriminate on
the basis of race.
On February 9, 1999, the district filed a motion with the
court asking for approval. However, at that same time, the
school board, not the United States, asked the court to postpone
consideration of the motion -- approval to open the charter
school. Therefore the court relieved the parties of the
responsibility to respond to the motion.
We have met with the school board and informed them of
concerns, including the possible impact on the little bit of
desegregation achieved at the schools near the proposed charter.
Contrary to the articles suggestion that the charter would enroll
650 students, the actual contemplate enrollment is 1200. 650 is
just the first year. We have also expressed some concern about
the drain of funds since the district claims it cannot fulfill
its responsibilities under the decree because of lack of funds.
The charter school group sought to intervene and we opposed
the intervention in the lawsuit by the charter school group,
stating that their interests are adequately represented by the
school board. On March 24, 1999, the court denied the motion on
those grounds.
We are now informed that the district intends to withdraw
its motion SO that it will purportedly no longer represent the
charter schools interests, and that the charter school has asked
Mr. Bolick to represent it in future proceedings.
Currently, three other charter schools operate in the
district, one of which is operated by the proponents of the
proposed Children's Charter. We have not objected to these
schools. They are relatively small. However, we have expressed
concern about proposed expansion, because of the potential effect
on desegregation.
St. Helena Parish, Louisiana
This is a case in which the Legal Defense Fund is a party
and AAAG Lee is recused.
St. Helena Parish is a small school district of
approximately 1200 students of whom 91% are African-American.
The school district is one of the poorest in the state. On
February 26, 1998, the local school board rejected the charter
school developer's application but was overruled by the State
Board. We have not opposed the charter, but we have asked the
State Board for information regarding its impact on desegregation
and the likely racial composition of the school. We have not
been supplied all of the information that we requested by letter
in March, 1999.
This proposed charter came to our attention in August, 1998,
while we were discussing the proposed charter in East Baton
Rouge.
Many years ago, when the district was ordered to
desegregate, the white students who resided in the district
enrolled in the public or private schools in the neighboring
Parish. Now, most of the white students who reside in the Parish
attend private schools. St. Helena's Superintendent informs us
that the private school is experiencing financial problems and
has notified parents that it will be raising tuition. According
to the Superintendent, the parents are looking for an alternative
to the private school and do not wish to enroll their children in
the predominantly African-American St. Helena Parish system. The
proposed charter would be located in a rural section of a
predominantly white residential area. Transportation would not
be provided. The State Board is providing us with information.
Monroe, Louisiana
In August, 1997, the local school board rejected the charter
school application. However, the State Board overruled the local
board. The local board sought our assistance. Thereafter, the
district filed a motion for a restraining order seeking to enjoin
the operation of the charter school. Conferences were held with
the court in July, 1998. We requested that before the court
approve the charter, there should be an evaluation of whether the
charter adversely impacts desegregation in the city school
system. A hearing followed in October, 1998, during which it
appeared that the board and the charter school proponents could
agree on the parameters of the operation of the charter. We
supported continuing the hearing until the agreement could be
worked out. The court, continued the hearing and permitted the
charter to open for the time being. Nothing has happened since.
Georgetown, South Carolina
This case has been active in recent years regarding the
closing of schools and the construction of new schools.
The United States and the District entered into a Consent
Decree, which was approved by the court on August 28, 1997. In
the Consent Decree, the District acknowledged its duties to
alleviate the racial isolation of African American students in
the Choppee area of the county and equalize resources. Thus, the
District agreed to consolidate certain attendance areas, close
schools, and replace the closed schools with new facilities.
County voters approved a $109 million bond referendum and the
District committed to opening the new schools prior to the 2001-
02 school year.
In the fall of 1998, a group of parents formed the Pleasant
Hill Area Charter Schools Committee. The Committee intended to
apply to the Georgetown County School Board to convert the
schools closed under the consent decree to charter schools,
pursuant to the South Carolina Charter Schools Act of 1996 (S.C.
Code § 59-40-10 et seq.) Pursuant to the statute and at the
Committee's request, the Board held an election among the
Pleasant Hill schools' faculty, who voted in favor of the
conversion to charter schools.
The United States sent Board counsel a letter dated November
6, 1998, in which we stated that to fulfil its Constitutional
responsibility to desegregate, the District must abide by its
commitments under the consent decree. Thus, the board should
disallow conversion of schools closed under the decree to charter
schools.
In discussions with Board counsel, we explained that our
position was not in conflict with South Carolina state law.
First, Section 59-40-50 of the South Carolina Charter School Act
states that a charter school must adhere to the same civil rights
requirements as are applied to other schools operating in the
same school district. Second, in Beaufort County Bd. of Educ. V.
Lighthouse Charter Sch. Comm. and the State of South Carolina,
No. 97-CP-07-794, Order at 13-14 (S.C. Ct. Com. Pleas Feb. 21,
1998), the Court of Common Pleas reversed the South Carolina
Board of Education's decision approving the application of the
Lighthouse Charter School Committee. The Court held that the
Committee had failed to prove that the charter school could
adhere to the Beaufort County Board of Education's voluntary
compliance agreement with the U.S. Department of Education,
Office for Civil Rights.
On December 1, 1998, the parents in the Pleasant Hill area
voted by a 2 to 1 margin against converting the three public
schools into charter schools.
A charter school currently operates in the district. We do
not object to that charter.
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Bethany Little
04/26/99 03:56:48 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP
CC:
Subject: FW: charters and deseg
Hot off the presses
Forwarded by Bethany Little/OPD/EOP on 04/26/99 03:56 PM
"Kimball, Kristi" <[email protected]>
04/26/99 03:56:05 PM
Record Type:
Record
To:
Bethany Little/OPD/EOP, Jonathan H. Schnur/OPD/EOP, Tanya E. Martin/OPD/EOP
CC:
"Kole, Adina" < [email protected]>
Subject: FW: charters and deseg
As promised, the draft SEA letter on deseg and charters is attached (in
email below). I am also going to paste in the letter to make sure you can
read it.
Please send any comments to me and Adina Kole.
Thanks,
Kristi
Dear Chief State School Officers:
The United States Department of Education (Department) has received many
baldrone are
questions relating to the creation of new public elementary and secondary
schools, including charter schools and magnet schools. The Department
In
strongly supports the creation of new public schools, both to meet
increasing enrollment demands and to foster public school choice. We are
ready to aid states, local educational agencies, and community members who
are considering opening new schools. That technical assistance includes
the
help in identifying applicable civil rights obligations and in ensuring
compliance. With early notice and technical assistance, we believe many new
schools
will avoid costly delays and litigation. This letter does not state any new
policy but merely summarizes existing obligations under civil rights laws.
The development of new public schools for the purpose of promoting public
school choice often serves to enhance educational programs for at risk
students and to promote desegregation. There is no inherent tension between
the establishment of these schools and desegregation obligations. However,
civil rights compliance issues may arise in particular situations.
Under Title VI of the Civil Rights Act of 1964, recipients of federal
financial assistance are prohibited from using "criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin." 34 C.F.R.
100.3(b)(2). In addition, "in determining the site or location of
facilities, an
applicant or recipient may not make selections with the effect of excluding
individuals from, denying them the benefits of, or subjecting them to
discrimination
on the ground of race, color, or national origin." 34
C.F.R. 100.3(b)(3). When a new school opens in a district that is covered
by a state or federal desegregation order, or a plan approved by the
Department's
Office for Civil Rights (OCR), any recipient of federal funds with authority
over
that school may have an obligation to ensure that the new school is
consistent with that order or plan. This could include a local educational
agency that opens a new school in a district covered by a federal court
we
order. It could also include a chartering authority that receives federal
funds and approves a charter school in an area covered by a desegregation
DO
order, as well as a recipient of federal funds that vests authority over
charter schools in another entity. The precise nature of a school's
obligations under a desegregation order or plan will vary depending upon
the type of order, the terms of the order and the characteristics of the
school.
Particularly given the variety of interested agencies, community
organizations, and individuals involved in developing schools, we encourage
your agency to exercise a leadership and coordinating role in ensuring that
these obligations are appropriately and constructively addressed in your
States. We are prepared to work with you to that end. OCR and our Office of
Elementary and Secondary Education (OESE), are available to aid states,
local educational agencies, and community members with identifying any
applicable desegregation orders or plans. In the case of OCR plans, OCR can
also provide advice regarding the nature of the desegregation obligation.
Where an order was issued by a state or federal court, OCR or OESE can
provide referrals to the appropriate state or federal agency. We can also
offer suggestions to states attempting to determine the most appropriate
process to ensure that the state satisfies its obligations under Title VI.
A list of contacts is attached to this letter.
>
Original Message
> From:
Kole, Adina
> Sent:
Monday, April 26, 1999 3:40 PM
> To: Kimball, Kristi; Wright, Sylvia; Medler, Alex; Fiegel, John;
> Grimes-Miller, Cathy; Lim, Jeanette; Berkowitz, David;
> [email protected]'; '[email protected]';
> "[email protected]"
> Cc: Winnick, Steve; Craig, Susan; Lahring, Karl
> Subject:
charters and deseg
>
>
< < <charters.rewrite.doc » Attached is the draft of the new school/deseg
> letter that will be forwarded to the White House today. Thank you for
> your comments. Please call me if you have any further questions or
> comments.
>
> Thanks,
>
> Adina
- charters.rewrite.doc
Elena Kagan
04/16/99 01:41:16 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP
CC:
Jonathan H. Schnur/OPD/EOP, Bruce N. Reed/OPD/EOP
bcc:
Subject: Re: Charter Schools/Bill Lan Lee
The Ed letter isn't going to do the trick. Your suggestion sounds fine, but quite honestly, so long
as Justice is where Justice is on this issue, Tracy is going to have a hard time just making it go
away.
Irene Bueno
Irene Bueno
04/16/99 11:38:55 AM
Record Type:
Record
To:
Elena Kagan/OPD/EOP
CC:
Jonathan H. Schnur/OPD/EOP, Laura Emmett/WHO/EOP
Subject: Charter Schools/Bill Lan Lee
I have been asked to participate in a conference call today, Friday at 4pm on Bill Lan Lee and need
your advice.
After our meeting on charter schools earlier this week, Tracey Thornton called me to inform me that
Senator Hatch and other folks have linked the charter schools issue with Bill Lan Lee's nomination
and they feel they need a letter or some document that separates this issue from his nomination
asap.
I explained to Tracey that Education is drafting a letter that addresses the larger issue of civil rights
and schools. Tracey thought that would be fine, however upon further reflection, I am not sure if
this Education letter is really the kind of response that will separate the issue from Bill's nomination.
It may make more sense for someone else - preferably with credibility in both the charter school
and civil rights arenas - send a letter that separates this issue from Bill's nomination. Of course, we
should provide policy directions but the letter could be similar to the general letter that White House
Counsel's office drafted last month that indicates that the Administration supports both charter
schools and civil rights.
Please let me know what you think. Thanks.
BEZ
Bethany Little
04/12/99 09:05:45 AM
Record Type:
Record
To:
See the distribution list at the bottom of this message
cc:
Laura Emmett/WHO/EOF
Subject: Civil Rights Meeting
A meeting to discuss civil rights guidance for charter schools and the editorial written on Bill Lan
Lee and charter schools has been scheduled for Tuesday, April 13 at 11:00 am. It will be in Room
211. Thanks!
Message Sent To:
Jonathan H. Schnur/OPD/EOP
Tanya E. Martin/OPD/EOP
Elena Kagan/OPD/EOP
Irene Bueno/OPD/EOP
Peter Rundlet/WHO/EOP
Edward W. Correia/WHO/EOP
Ed.
1
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b/c of Mdourer United (see Ladnt).
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court sen. must thank districts have a goning pland this. Hf wold
require some approval. Scholl one good about regards
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angy school board complain Is Ed BC C.S, is being opened
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2
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n the duelaper.
process to start in Chash School
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LDF, private individuals, LEA, NAACP,
state, its.
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partice (11)
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an -party,
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their
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Proposed Strategy for Addressing the Relationship of Charter Schools and Other
New Schools to Desegregation
Dor. t communicate a requirement that chartering authority or school obtain prior
approval from court or OCR.
With respect to OCR-approved desegregation plans enforcement generally would
occur through the handling of complaints filed by third parties or compliance reviews,
consistent with normal enforcement procedures.
With respect to new schools in jurisdictions under court order, there would be no
general requirement that the schools be cleared by DOJ. Our guidance would indicate
that creation of such schools may need to be cleared by the cognizant court and that
recipients should use due diligence to ensure that any new schools do not impede
desegregation obligations. Chartering authorities should address this issue in each
case.
The Department would write a letter to State educational agencies alerting them to the
importance of their exercising leadership and coordination in ensuring that civil rights
and desegregation issues are appropriately addressed in connection with the creation
of new LEAs and public schools, making it clear that there are a wide variety of ways
that they can do this, and offering them technical assistance. In instances when OCR
has an ongoing compliance or enforcement relationship with States, such States
would be advised to expect additional follow up from OCR. The Department would
write a similar letter to chartering authorities and LEAs.
The main point of the letter is to encourage recipients with the authority to approve
the creation of new schools, including new charter schools and other public schools of
choice, to be aware of existing desegregation responsibilities, when making decisions
about opening any new schools. The letter is not meant to discourage the creation of
new public school choices, including charter schools, in jurisdictions where
continuing vestiges of prior discrimination are being eliminated. Rather, it is
designed to head off possible Title VI problems in the future by drawing attention to
these concerns prior to the creation of new schools.
To assist chartering authorities and schools in addressing these and other civil rights
issues, the Department would offer to coordinate technical assistance. We anticipate
that this could include working in conjunction with the OCR Regional Offices, our
ten federally funded regional Equity Assistance Centers, and, where appropriate, the
Department of Justice, State and local agencies, and other ED offices, such as the
Public Charter Schools Program, to help to identify applicable desegregation
obligations, and provide technical assistance to entities with these Title VI
responsibilities. Additionally, we would be available to provide assistance to new
schools that encounter desegregation responsibilities as roadblocks to their creation.
States and other recipients have a broad range of discretion in determining how to
carry out these responsibilities, including exercising independent judgment as to
whether the new school would impede desegregation obligations; establishing a
process for review of any new schools proposed; or, directly assisting the new school
in getting all necessary approvals from the entity overseeing the desegregation efforts.
ESTABLISHMENT OF NEW CHARTER SCHOOLS IN JURISDICTIONS THAT ARE
UNDER EXISTING DESEGREGATION PLANS
Extent to Which Proposed New Public Schools Are Required to Be Approved Under
Office for Civil Rights (OCR) Desegregation Plans Before They Open
One of OCR's enforcement offices reports that about half of OCR's 441B plans expressly
or implicitly suggest that OCR be notified, and provided an opportunity for review and
approval, regarding the establishment of proposed new public schools or zone changes
to ensure consistency with the OCR 441B plan. OCR 's enforcement offices report that
in some cases, districts come to OCR for approval of new schools or rezoning. Other
times, OCR has been alerted to possible resegregation regarding establishment of new
schools or rezoning through complaints. Some districts have requested OCR's review
and approval of school boundary changes in order to head off problems with local
communities. Generally, 441B plan districts may believe that the desegregation plans
were "one time, one shot" plans and addressed the assignment of Black and White
students at the time of the initial desegregation back in the early 1970's.
In general, with respect to proposed new schools in 441B plan districts, applicable
information needs to be provided to OCR regarding the planned new school, such as the
projected racial composition of the new school's student body and the impact that the
new school will have on the racial composition of the other public schools in the
district. The same requirements would apply in situations where a new neighborhood
school is being proposed in a predominantly minority community that is part of a 441B
plan district. Generally, OCR makes a final decision regarding the approval of new
public schools within 90 days of the date a complete information package is provided to
OCR.
Recent Experiences Regarding the Approval of New Charter Schools In School
Districts Under OCR 441B Plans and Under Court Orders Requiring Desegregation
None of the OCR enforcement offices that have OCR 441B plan districts within their
jurisdiction report that any school district or charter school has sought OCR review or
clearance prior to or after a charter school has been recognized or funded in a school
district. However, note that attorneys for the Lighthouse Charter School in Beaufort,
SC visited OCR for technical assistance. The school has not been opened because of a
state court injunction obtained by the Beaufort County School District. 1 It should also
be noted that OCR's Dallas Office has entered into a methods of administration
agreement with the State of Texas that all new charter schools approved by the State
Board of Education will file assurances of compliance with OCR; OCR's Dallas Office
has received 19 such assurances from new charter schools, all in Houston.
1
In the injunction, the court stated that the Lighthouse Charter School Committee had failed to prove that
the charter school would adhere to the Beaufort Board of Education's existing desegregation compliance
agreement with OCR, and that the Board 's decision to deny the application was not arbitrary and
capricious because the Committee had not received clearance from OCR for establishing the charter school.
Beaufort County Board of Education VS. Lighthouse Charter School Committee and the State of South
Carolina, No. 97-CP-07-794, Order at 13-15 (S.C. Ct. of Common Pleas Feb. 21, 1998).
3
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(no authority View on C.S. + NW
June table. Zuilla next week draft
Hand
Lotz of issue . read L lacy keys avare speck m this
Though, keep as inframed,
Guilters TA Guidne - never LL wruted as.
LETTER4 WPD
Page 1
To the Editor:
Clint Bolick's article about Bill Lann Lee and charter schools argues that Mr.
Lee has "launched a campaign to stop charter schools in their tracks." Some
campaign. Under President Clinton, the number of charter schools in America has
gone from just one in 1993 to more than 1,100 today.
There is no "campaign" or "battle" against charter schools being waged by
Bill Lann Lee or anyone else in the Clinton Administration. Thanks to the leadership
of President Clinton, school districts across the country are embracing charter
schools as an innovative way to improve the quality of education in America,
particularly in distressed areas where the need is so great. Bill Lann Lee, Acting
Assistant Attorney General for Civil Rights in the Department of Justice, shares the
President's vision and supports Administration policy and the law completely.
Fundamental civil rights goals of breaking down segregation and ensuring
equal educational opportunities for all Americans can be achieved simultaneously
with the development of charter schools. The rapid growth of charter schools
during the last six years is proof. For example, in the East Baton Rouge case, the
Department of Justice did not oppose the opening of a new charter school. It
simply asked the new charter school to take steps to avoid further segregating the
community. In the South Carolina case, the government moved to enforce an
existing consent decree which closed certain schools to alleviate the isolation of
African American students and equalize resources, and the state court agreed. The
closed schools are to be replaced by new facilities. In no case has the government
acted against any charter school simply because it is a charter school. In every
case the government has acted to protect the public interest in desegregation.
Mr. Bolick imagines a "war" against charter schools that simply does not
exist. The only battle being waged is by Mr. Bolick and his allies against the
nomination of Bill Lann Lee. But their complaint is not really with Mr. Lee. It is
with the civil rights laws themselves, which Mr. Lee has been acting to enforce for
the past year. His track record of success -- and the Clinton Administration's
success in promoting charter schools speak for themselves.
Sincerely,
James E. Kennedy
Special Advisor To The White House Counsel
LETTER2.WPD
Page 1
Bruel Elena
for your within
To the Editor:
Clint Bolick's article about Bill Lann Lee and charter schools argues that Mr.
Lee has "launched a campaign to stop charter schools in their tracks." Some
campaign. Under President Clinton, the number of charter schools in America has
gone from just one in 1993 to more than 1,100 today.
There is no "campaign" or "battle" against charter schools being waged by
Bill Lann Lee or anyone else in the Clinton Administration. Thanks to the leadership
of President Clinton, school districts across the country are embracing charter
schools as an innovative way to improve the quality of education in America,
particularly in distressed areas where the need is so great. Bill Lann Lee, Acting
Assistant Attorney General for Civil Rights in the Department of Justice, shares the
President's vision and supports Administration policy and the law completely.
The cases cited by Mr. Bolick are ones in which the federal government is
simply acting to enforce the law Fundamental civil rights goals of breaking down
segregation and ensuring equal educational opportunities for all Americans can be
achieved simultaneously with the development of charter schools. The rapid
growth of charter schools during the last six years is proof.
All the cases cited by Mr. Bolick are ones in which the federal government is
working to ensure that the civil rights laws are enforced at the same time as charter
schools are allowed to develop. For example, in the South Carolina case, the
government moved to enforce an existing consent decree which closed certain
schools to alleviate the isolation of African American students and equalize
resources. The closed schools are to be replaced by new facilities A move to
reopen the closed schools as charter schools constituted a violation of the consent
decree, and the South Carolina Court of Common Pleas The court agreed, reversing
a state Board of Education decision approving the charter schools In addition, last
December with the Department. Moreover, the parents in the region of the closed
schools voted by a 2 to 1 margin against converting the three public schools into
charter schools. The federal government's action in this matter was therefore
completely consistent with the legal judgment of the South Carolina courts and the
political judgment of the local community.
Mr. Bolick imagines a "war" against charter schools that simply does not
exist. In the East Baton Rouge case, the Department of Justice did not oppose the
opening of a new charter school. It simply asked the new charter school to take
steps to avoid further segregating the community.
Mr. Bolick imagines a "war" against charter schools that simply does not
exist. The only battle being waged is by Mr. Bolick and his allies against the
nomination of Bill Lann Lee. But their complaint is not really with Mr. Lee. It is
with the civil rights laws themselves, which Mr. Lee has been acting to enforce for
the past year. His track record of success -- and the Clinton Administration's
success in promoting charter schools -- speak for themselves.
And
How deaded inpust?
Jonathan H. Schnur
03/22/99 08:26:50 PM
Record Type: Record
To:
Irene Bueno/OPD/EOP
CC:
See the distribution list at the bottom of this message
bcc:
Subject: Re: letter
I agree with Irene and Tracey. I don't think we should send a letter focusing on the specifics of
Bolick's charter school/deseg arguments unless and until:
1) (as Tracey says) we find out it would be helpful to Bill Lee's confirmation, and
2) we have had a chance to discuss the charter school/deseg issues in Friday's meeting.
We could always have that meeting sooner if needed, but I think we need that discussion before
determining the best timing, content, and message for the charter school editorial.
Irene Bueno
Irene Bueno
03/22/99 08:11:08 PM
Record Type:
Record
To:
Tracey E. Thornton/WHO/EOP @ EOP
CC:
See the distribution list at the bottom of this message
bcc:
Subject: Re: letter
Tracey -
I agree. We should wait to hear from you on your meetings with LA Senators whether it would
help Bill's nomination for someone to do a letter to the Editor that attacks Bollick's op-ed. As I
mentioned in earlier an e-mail, DPC is hosting a meeting later this week to discuss our policy on
this issue so please let me know if you learn anything from your Hill meetings that we should
consider in our discussions.
Irene
Tracey E. Thornton
Tracey E. Thornton
03/22/99 07:51:03 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP
CC:
See the distribution list at the bottom of this message
Subject: Re: letter
I'm not sure what this is all about. The bottom line question in any of this stuff relating to Bill Lee
is does it advance his nomination in some way? If we need to do this for the LA Senators then we
should. If we don't need to do it for our Senate folks, we should concentrate our energies
elsewhere. We are asking the members now and we'll let you know what we get. I'm not a press
person but I do know a bit about nominations and shoring up votes and I'll say this again -- we
could use some positive pieces right now on Bill Lee. Is anybody working on that piece of this?
And finally, let me say that while it is very tempting to get into this debate with the Bolick forces,
there's a person attached to this debate who we have a great deal of power to destroy
professionally -- however inadvertently. And we should focus on that and not Clint Bolick. If Bill is
not harmed by the Bolick piece then we should move on. Bolick is trying to pick off the LA Dems;
has he succeded? If not, we're just chasing our tail. It is early in this game and we will soon learn
this week how Democrats want to work this. Until then, we are going to have to play this close.
If we're trying to get Lee confirmed, we need to focus on that and not permit the right wing to
make us scramble around every time they get ink. For every negative piece, there should be a
positive one -- not a response to the negative one.
Message Copied To:
Peter Rundlet/WHO/EOP
Edward W. Correia/WHO/EOP
Irene Bueno/OPD/EOP
James E. Kennedy/WHO/EOP
Amy Weiss/WHO/EOP
Jonathan H. Schnur/OPD/EOP
Caroline R. Fredrickson/WHO/EOP
Message Copied To:
Peter Rundlet/WHO/EOP @ EOP
Edward W. Correia/WHO/EOP @ EOP
James E. Kennedy/WHO/EOP @ EOP
Amy Weiss/WHO/EOP @ EOP
Jonathan H. Schnur/OPD/EOP @ EOP
Caroline R. Fredrickson/WHO/EOP @ EOP
Message Copied To:
tracey e. thornton/who/eop
peter rundlet/who/eop
edward W. correia/who/eop
james e. kennedy/who/eop
amy weiss/who/eop
caroline r. fredrickson/who/eop
THE WALL STREET JOURNAL MONDAY, MARCH 22, 1999
A23
Bill Lann Lee's War on Charter Schools
As critics, including me, predicted, Bill
comed the school for their academically
overwhelmingly black school district
Lann Lee, the thrice-nominated, never-
district to maintain existing schools and
troubled sons. "It's a very structured envi-
confirmed "acting" chief of the Justice De-
would aid, not inhibit, desegregation. Even
attendance zones, period. The charter
ronment," explained Mrs. Percy, "and it's
if the goals of desegregation are furthered,
partment's Civil Rights Division, has re-
schools' impact on racial balance and edu-
something our kids need."
lentlessly pursued racial preferences in his
Mr. Lee apparently is inherently suspi-
cational opportunities wasn't even consid-
But the Civil Rights Division went to
15 months at the helm. But now he has un-
clous of any measure that takes power out
ered.
court to halt United Charter School from
leashed his forces on a new target: charter
of the hands of the courts and puts it into
Meanwhile, Mr. Lee's opposite num-
opening. Longstanding desegregation or-
the hands of parents.
schools.
ber in the Education Department's Office.
ders require all public schools to be
The division also supported an effort to
Wielding school desegregation decrees
for Civil Rights, Norma Cantu, has been
within 15 percentage points of the dis-
shut down the New Vision Charter School
that often are many decades old, Mr. Lee
using the federal Individuals with Dis-
trict's 65% black student population and
in Monroe, but federal Judge F.A. Little Jr.
United Charter School agreed to those
abilities Education Act to challenge char-
refused to go along.
ter schools. Between Mr. Lee and Ms.
Rule of Law
racial parameters. But some of the dis-
Statewide, the divi-
Cantu, the concept of charter schools,
trict's other public schools are more than
sion has demanded
By Clint Bolick
95% black, and Justice Department offi-
predicated upon freedom from stifling
racial statistics as a
cials apparently fear that the charter
state and local controls, could perish be-
precondition for ap-
neath the federal. regulatory hammer.
school will siphon some of the few white
proving any charter
Ironically, such efforts to stifle charter
students-a dubious proposition given
schools. But how can
has launched a campaign to stop charter
schools could drive more education re-
that the new school will be located in a
a school that doesn't
schools in their tracks. His actions put him
black neighborhood.
formers to embrace vouchers for private
yet exist provide such
schools.
provocatively at odds both with the goals of
But no one knows the division's reason-
data? As Gov. Mike
desegregation and the Clinton administra-
Mr. Clinton has just submitted Bill
ing for sure, because it refuses to-explain
Foster has pointed
tion's official education policy.
Lann Lee's nomination to the Senate Ju-
itself. One frustrated member of the char-
out, exact demo-
Charter schools are break-the-mold
diciary Committee for a third time. He
ter school committee took a photo of a
graphics are impossi-
public schools, freed from most bureau-
blackboard after a meeting with Justice
ble until students en-
Bill Lann Lee
still must persuade Senate Republicans
cratic restraints, that tend to serve
why they should support a civil rights
Department officials in order to finally
largely minority-student populations-
roll and staff are hired. Without approval;
law-enforcement official who refuses to
record something in writing. The division
that process cannot commence, thereby
also the supposed beneficiaries of deseg-
abide by the Supreme Court's precedents
opposed the school's motion to intervene in
creating precisely the Catch-22 the Civil
regation decrees. President Clinton backs
the desegregation case, and has urged the
on racial preferences. Now the president
Rights Division clearly intends.
charter schools as an alternative to
also must convince pro-charter school De-
trial court to postpone consideration until
"There are a lot of desegregation orders
vouchers for private schools, going so far
mocrats to support an official who is
it would be too late for the school to open
in Louisiana, and the charter law is at
as to predict that "the only way public
next fall.
wielding the nation's civil rights arsenal
risk," remarks Children's Charter board
schools can survive
is if all of our
The division's actions to prevent a com-
to wreak havoc upon this vital public
schools are eventually run like
member Rolfe McCollister. "If the final say
school reform.
charter
pany called SABIS International from
schools."
belongs to a guy from Washington, D.C.,
Meanwhile, the East Baton Rouge
opening a charter school in St. Helena
we're in trouble."
Neither law nor policy deters Mr. Lee,
school system toils under its 43rd year of
Parish are even more mystifying. The
who is waging the battle against charter
And not just in Louisiana. These early
federal judicial control. Some of the orig.
school district is 91% black and has only
skirmishes have nationwide ramifica-
schools with the same ideological zeal with
inal plaintiff schoolchildren now are 60
one elementary school, one junior high,
tions: more than 500 school districts re-
which he fought for forced busing and
years old. How sad that their grandchil-
and one high school, making it definition-
main subject to court desegregation or-
racial balance in public schools as a
ally impossible to racially balance. More-
dren still are denied educational oppor:
ders; many of them in large cities and
lawyer for the NAACP Legal Defense
tunities-and how perverse that the de:
over, the charter school agreed that more
Fund.
heavily minority school districts that
privation is visited upon them by the Jus-
than 90% of its students would be academi-
The main battleground is Louisiana. In
desperately need educational opportuni-
tice Department's Civil Rights Division.
cally at risk.
ties.
East Baton Rouge, a group called Chil-
Again Mr. Lee's Civil Rights Division
dren's Charter won local approval to open
Another battleground is South Carolina,
Mr. Bolick is litigation director of the In
objected, apparently believing that the
United Charter School last year to offer an
where the Civil Rights Division put a stop
stitute for Justice in Washington D.C., and
charter school would draw white students
last November to a school district's efforts
alternative for 650 at-risk children. Resi-
author of "Transformation: The Promise
who attend private schools in the suburbs.
to convert certain schools to charter
dents Estella and Winfield Percy wel-
and Politics of Empowerment" (1998, ICS
Of course, attracting white students to the
schools. The division ordered the school
Press).
WHAT TO DO
ON
A
SAAB
TEST DRIVE
Charch School
Ed guidnee - pmy charter schul wold need to couply w/ ares
order. + need prix approval by OCR at Ed or
countr t get up start up Fed. paiding but Cm set inplutal hady
Ed was not sure what they are doing
- Bunce Add called mike smith held up suidene
- meeting this week
- Shrut Ishimam 8 514 - 3845
+ Juliette
to st
/ Charter Schol local approval - local # Charter loal
A
apply to stile for Led $1 budy
/ Fed / new process poobly ok. how I. you to dort
Desegrezed
Irene Bueno
03/23/99 08:55:11 AM
Record Type:
Record
To:
Edward W. Correia/WHO/EOP
cc:
bcc:
Subject: Re: letter
I understand Jim and your points and I want to do everything we can to support Bill and the
Administration's positions on charter schools and civil rights.
I think there should be a response to Bollick op-ed but the issue is what , when, and who should
send the response. Also, we need to keep in mind Tracey's caution that we do not anything that
will undermine Bill's confirmation prospects.
- What is in the response - I think a clear statement of the Administration's policy on these issues
and arguments why Bill should be confirmed should be added to the current draft.
- When to respond - I think the meeting on Friday could change or make stronger and clearer the
Administration's positions on this issue. I will try to move up the timing of this meeting.
- Who sends the letter - The WH can certainly sends this letter because its faster. Another option
is to find a supporter of Bill who has credibility in both the education and civil rights community to
send a letter to the editor attacking Bollick's article.
I am meeting with Bruce and Elena this morning and will discuss with them.
Edward W. Correia
Edward W. Correia
03/23/99 08:46:14 AM
Record Type: Record
To:
James E. Kennedy/WHO/EOP
CC:
See the distribution list at the bottom of this message
Subject: Re: letter
I agree that we don't need to respond to every negative piece, but this one is specific,
hard-hitting and read by lots of people, probably including every Republican Senator on the
Judiciary Committee. Given the general points of the draft letter, I don't understand what would
come out of the meeting with the LA senators that would make us think responding doesn't help.
(They may want more specifics on the Louisiana cases, but that's fine.) Is the Friday meeting going
to come up with something that would change the general points in the letter? If so, maybe we
should wait, but I don't see how that meeting likely to change these basic ideas. So, I tend to think
we should get this out, or some version people are comfortable with. If there is a disagreement,
maybe Maria can resolve it. (Chuck is out.)
Message Copied To:
Jonathan H. Schnur/OPD/EOP
Irene Bueno/OPD/EOP
Tracey E. Thornton/WHO/EOP
Peter Rundlet/WHO/EOP
James E. Kennedy/WHO/EOP
Amy Weiss/WHO/EOP
Caroline R. Fredrickson/WHO/EOP
James E. Kennedy
03/23/99 08:38:12 AM
Record Type:
Record
To:
Jonathan H. Schnur/OPD/EOP
CC:
See the distribution list at the bottom of this message
Subject: Re: letter
Here's my view, for what it's worth:
1. The Bolick article is not simply an attack on Bill Lann Lee; it is an attack on the President's
commitment to charter schools as well, and as such is deserving of an immediate response.
2. The Bolick article, unrebutted, paints a damning picture. Not responding is tantamount to an
admission that Bolick's right. Once I saw the real facts, I understood the bigger picture. But
everyone following the story deserves to see those same facts, especially the media and swing
votes.
3. Without an immediate response, everyone following the issue has Bolick's point of view, and no
other, on this issue. Even conservative Dems on the Hill, whose support we need but do not
necessarily have, can be adversely affected by a slanted piece like this.
4. The response can be framed in a way that conveys a positive message about Bill Lann Lee and
the Clinton Administration re: charter schools and civil rights.
5. We've appeared to be in a fetal position in the media, taking sharp attacks and not
counterpunching. A positive piece about Bill Lann Lee in some publication is great, and should be
done (I have one draft), but we also need to demonstrate we're fighting for this nomination and
can't let unfair attacks sit out there as if they're correct.
Message Copied To:
Irene Bueno/OPD/EOP
Tracey E. Thornton/WHO/EOP
Peter Rundlet/WHO/EOP
Edward W. Correia/WHO/EOP
James E. Kennedy/WHO/EOP
Amy Weiss/WHO/EOP
Caroline R. Fredrickson/WHO/EOF
Edward W. Correia
03/23/99 08:46:14 AM.
Record Type:
Record
To:
James E. Kennedy/WHO/EOP
CC:
See the distribution list at the bottom of this message
Subject: Re: letter
I agree that we don't need to respond to every negative piece, but this one is specific,
hard-hitting and read by lots of people, probably including every Republican Senator on the
Judiciary Committee. Given the general points of the draft letter, I don't understand what would
come out of the meeting with the LA senators that would make us think responding doesn't help.
(They may want more specifics on the Louisiana cases, but that's fine.) Is the Friday meeting going
to come up with something that would change the general points in the letter? If so, maybe we
should wait, but I don't see how that meeting likely to change these basic ideas. So, I tend to think
we should get this out, or some version people are comfortable with. If there is a disagreement,
maybe Maria can resolve it. (Chuck is out.)
Message Copied To:
Jonathan H. Schnur/OPD/EOP
Irene Bueno/OPD/EOP
Tracey E. Thornton/WHO/EOP
Peter Rundlet/WHO/EOP
James E. Kennedy/WHO/EOP
Amy Weiss/WHO/EOP
Caroline R. Fredrickson/WHO/EOP
MAR.22.1999 11:39AM
OFFICE OF THE AAG
NO.171
U.S. Department of Justice
Civil Rights Division
Assistant Anorney General
Washington, D.C. 20530
TELEFACSIMILE COVER SHEET
DATE:
3/22/99
TO:
Peter Rundlet
456-5053
Eddie Correia
456-5055
John Schnur
456-5581
Irene Bueno
456-5581
FROM:
JULIETTE KAYYEM
DEPARTMENT OF JUSTICE - CIVIL RIGHTS DIVISION
FAX NUMBER: 202-514-0293
PHONE: 202-514-305-0587
MESSAGE:
Eddie, please share with Bill Lee Confirmation Team. John has press statement. I will
be out of the office from 12-4 today. Please contact Stuart Ishimaru.
NUMBER OF PAGES TRANSMITTED (EXCLUDING THIS SHEET)
2
(max. 30 pages)
THE INFORMATION CONTAINED IN THIS TRANSMISSION IS THE PROPERTY OF THE UNITED STATES AND
MAY BE ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL. IT IS INTENDED ONLY FOR THE USE OF
THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF
THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE NOTIFY US IMMEDIATELY BY CALLING THE SENDER OF THIS MESSAGE.
MAR.22.1999 11:39AM
OFFICE OF THE AAG
NO.171
1.
The South Carolina matter referred to in the article is
United States V. Georgetown County School District. The United
States and the District entered into a Consent Decree, which was
approved by the court on August 28, 1997. In the Consent Decree,
the District acknowledged its duties to alleviate the racial
isolation of African American students in the Choppee area of the
county and equalize resources. Thus, the District agreed to
consolidate certain attendance areas, close schools, and replace
the closed schools with new facilities. County voters approved a
$109 million bond referendum and the District committed to
opening the new schools prior to the 2001-02 school year.
In the fall of 1998, a group of parents formed the Pleasant
Hill Area Charter Schools Committee. The Committee intended to
apply to the Georgetown County School Board to convert the
schools closed under the consent decree to charter schools,
pursuant to the South Carolina Charter Schools Act of 1996 (S.C.
Code § 59-40-10 et seq.). Pursuant to the statute and at the
Committee's request, the Board held an election among the
Pleasant Hill schools' faculty, who voted in favor of the
conversion to charter schools.
The United States sent Board counsel a letter dated November
6, 1998, in which we stated that to fulfil its Constitutional
responsibility to desegregate, the District must abide by its
commitments under the consent decree. Thus, the board should
disallow conversion of schools closed under the decree to charter
schools.
In discussions with Board counsel, we explained that our
position was not in conflict with South Carolina state law.
First, Section 59-40-50 of the South Carolina Charter School Act
states that a charter school must adhere to the same civil rights
requirements as are applied to other schools operating in the
same school district. Second, in Beaufort County Bd. of Educ. V.
Lighthouse Charter Sch. Comm. and the State of South Carolina,
No. 97-CP-07-794, Order at 13-14 (S.C. Ct. Com. Pleas Feb. 21,
1998), the Court of Common Pleas reversed the South Carolina
Board of Education's decision approving the application of the
Lighthouse Charter School Committee. The Court held that the
Committee had failed to prove that the charter school could
adhere to the Beaufort County Board of Education's voluntary
compliance agreement with the U.S. Department of Education,
Office for Civil Rights.
On December 1, 1998, the parents in the Pleasant Hill area
voted by a 2 to 1 margin against converting the three public
schools into charter schools.
MAR.22.1999 11:40AM
OFFICE OF THE AAG
NO.171
2. East Baton Rouge.
The Division did oppose the intervention in the lawsuit by
the charter school group, stating that their interests are
adequately represented by the school board, which they agreed
with.
The school board approved the charter school and filed a
motion with the court asking for approval. However, the school
board, not the United States, asked the court to postpone
consideration of the motion approval to open the charter
school. Therefore the court relieved the parties of the
responsibility to respond to the motion. However, we have met
with the school board and informed them of concerns, including
the drain of funds necessary to support the consent decree and
the possible impact on the little bit of desegregation achieved
at the schools near the proposed charter. Contrary to the
articles suggestion that the charter would enroll 650 students,
the actual contemplate enrollment is 1200. 650 is just the first
year.
The article says that our concern that the proposed charter
will draw off white students is dubious because the charter will
be located in a black neighborhood. However, the charter will be
in a new building on the edge of a black neighborhood in a strip
mall on a major thouroughfare next to police station. So our
concern is not dubious. All we have asked is that the charter
take measure to avoid drawing these few white students out of
these nearby schools, and the same with respect to black students
at white schools.
3. St. Helena. Small rural school district of less than 2000
students, which is close to 95% black. The local school board
rejected the charter application because of concerns about the
impact of the charter on the system. State Board over-ruled the
local board. We simply asked the State Board to re-evaluate its
position in light of the possible effects on desegregation. The
State Board is providing us with information.
Several years ago when the desegregation plan was
implemented, the majority of the white students left to go to a
private school in an adjoining parish. The location of the
charter school is in the neighborhood where those students live.
4. Statewide. St. Helena is part of statewide. But all we have
done statewide in ask the state board to develop a process to let
us know when charter applications are pending and to ensue to the
extent practical that the operation of the charter is consistent
with the desegregation plan.
5. Monroe. The local school board rejected the application.
The State Board overruled. The local board sought our
MAR.22.1999 11:40AM
OFFICE OF THE AAG
NO.171
P.4/4
assistance. Conferences were held with the Court. We requested
that evaluation of whether the charter adversely impacts desegregation
before the court approve the charter, there should be an
in the city school system. We did not seek to close the charter-
-it wasn't open. A hearing followed, during which it appeared
that the board and the charter folks could agree on the
parameters of the operation of the charter. We supported
The court, continued the hearing and permitted the charter
continuing the hearing until the agreement could be worked out. to
open for the time being. Nothing has happened since.
LETTER.WPD
Page 1
To the Editor:
Clint Bolick's article about Bill Lann Lee and charter schools argues that Mr.
Lee has "launched a campaign to stop charter schools in their tracks." Some
campaign. Under President Clinton, the number of charter schools in America has
gone from just one in 1993 to more than 1,100 today.
There is no "campaign" or "battle" against charter schools being waged by
Bill Lann Lee or anyone else in the Clinton Administration. Thanks to the leadership
of President Clinton, school districts across the country are embracing charter
schools as an innovative way to improve the quality of education in America,
particularly in distressed areas where the need is so great. Bill Lann Lee, Acting
Assistant Attorney General for Civil Rights in the Department of Justice, shares the
President's vision and supports Administration policy and the law completely.
The cases cited by Mr. Bolick are ones in which the federal government is
simply acting to enforce the law. For example, in the South Carolina case, the
government moved to enforce an existing consent decree which closed certain
schools to alleviate the isolation of African American students and equalize
resources. The closed schools are to be replaced by new facilities. A move to
reopen the closed schools as charter schools constituted a violation of the consent
decree, and the South Carolina Court of Common Pleas agreed, reversing a state
Board of Education decision approving the charter schools. In addition, last
December, the parents in the region of the closed schools voted by a 2 to 1 margin
against converting the three public schools into charter schools. The federal
government's action in this matter was therefore completely consistent with the
legal judgment of the South Carolina courts and the political judgment of the local
community.
Mr. Bolick imagines a "war" against charter schools that simply does not
exist. The only battle being waged is by Mr. Bolick and his allies against the
nomination of Bill Lann Lee. But their complaint is not really with Mr. Lee. It is
with the civil rights laws themselves, which Mr. Lee has been acting to enforce for
the past year. His track record of success -- and the Clinton Administration's
success in promoting charter schools -- speak for themselves.
~0018670.WPD
Page 1
Education Q&A
March 22, 1999
Q:
An editorial in this morning's Wall Street Journal criticizes Bill Lann Lee for
preventing charter schools from opening because of concerns they will affect
the racial composition of schools established in desegregation orders. Is this
true?
A:
The President has championed the charter school movement as a way to
expand choice in public education, especially for students in greatest need.
Under President Clinton's leadership the number of charter schools has
grown from just one when he was elected to approximately 1100 this year.
At the same time, the President is committed to enforcing our civil rights
laws, including in educational institutions.
Today's Wall Street Journal op-ed alludes to specific active investigations,
and questions about these investigations should be directed to the Justice
Department. But the President and Administration strongly support charter
schools, and the Justice Department's review of whether a particular charter
school complies with a standing desegregation order should not be seen as
calling into question this strong support.
Jonathan H. Schnur
03/22/99 10:33:02 AM
Record Type:
Record
To:
Irene Bueno/OPD/EOP, Tanya E. Martin/OPD/EOP, Peter Rundlet/WHO/EOP
CC:
Subject: draft Q&A on charter/deseg -- need any reactions very quickly
Q: An editorial in this morning's Wall Street Journal criticizes Bill Lann Lee for "waging a battle"
against charter schools -- a movement that the editorial notes is strongly backed by President
Clinton -- by blocking charter schools in Lousiana from opening because of concerns they will affect
the racial balance of student populations established in desegregation orders.
A: The President has advocated tirelessly on behalf of providing opportunity to minority children
and other children in need -- both through improved public schools and through protection of civil
rights. The President has championed the charter school movement as a way to expand choice in
public education for students and their families, and especially for those in greatest need. Under
President Clinton's leadership the number of charter schools has grown from just one when he was
elected to approximately 1100 this year. The President also strongly believes in protecting the civil
rights of all of our people and that one of this country's greatest strengths is its diversity.
The Wall Street Journal editorial apparently alluded to specific active investigations, and we
routinely refer questions about Justice Department investigations to the Justice Department. But
the President and Administration strongly support charter schools, and any Justice Department
review of desegregation cases should not be seen as calling into question the strong support from
the President and Administration for strengthening public education through the charter school
movement.