Experienced in Education, Civil, and Disability Rights

Is your charter school or is the school district responsible for a denial of FAPE? The answer it depends on the MOU contract and also whether the charter is a school considered part of the school district or its own designated LEA. Why does this matter- don't be the family who went to due process and lost when they failed to name the correct agency! From the case: Students with disabilities and their families retain all rights under the IDEA when a student is attending a charter school, just as they would when attending traditional public schools. (34 C.F.R. § 300.209(a).) This also applies to online and virtual charter schools. (See Dear Colleague Letter, 68 IDELR 108 (OSERS/OSEP 2016.) Charter schools may not deny any student admission based upon a student's disability. (34 C.F.R. § 104.4(b)(1)(i); Ed. Code, § 47605.) All California charter schools are public schools; however, some are also designated local educational agencies, referred to as LEAs. (34 C.F.R § 300.7; 71 Fed. Reg. 46,548 (2006); Ed. Code, § 47641.) An LEA means a school district, a county office of education, a nonprofit charter school participating as a member of a special education local plan area, referred to as a SELPA, or a SELPA. (Ed. Code, § 56026.3.) Not all charter schools are LEAs. (Ed. Code, § 47641.) Rather, the law allows charter schools and their chartering agency to choose between two options: (1) the charter school may be a school within the chartering LEA for the purpose of special education; or (2) the charter school may become its own LEA and join a SELPA, receive special education funds, and take responsibility for providing students special education and related services. (Id.; Ed. Code, § 47641.) This is a critical distinction in disputes under the IDEA, as LEAs bear the responsibility for providing students a FAPE and the consequent liability for any failure to provide a FAPE in a due process hearing. When a charter school is designated a school of the LEA, the LEA is responsible for ensuring that attending students with disabilities receive a FAPE as required by the IDEA and California law. (Ed. Code, § 47641, subd. (a).) However, LEAs and charter schools are not precluded from entering into Memorandums of Understanding, referred to as MOUs, that grant charter schools more autonomy, responsibility, and funding to provide special education and related services. (“Enrollment of Students with Disabilities in Charter Schools,” California Department of Education Official Letter, December 27, 2017.)