Advocates for Children, the decades old advocacy organization has filed a formal complaint with the New York State Department of Education (NYSED) alleging scores of examples of Success Academy (SA) schools violating the rights of students in regard to special education services
Complaint Filed Against Success Academy Charter Schools and NYC DOE for Failure to Uphold Rights of Students with Disabilities
11.29.2018 | Today, Advocates for Children of New York along with co-counsel Akin Gump Strauss Hauer & Feld LLP filed a complaint with the New York State Education Department against Success Academy Charter Schools and the New York City Department of Education (“DOE”) for failing to comply with civil rights laws protecting students with disabilities who attend Success Academy schools. The complaint alleges that Success Academy has changed the placements of students with disabilities without following procedures required to protect the rights of students with disabilities and their parents and has refused to comply with administrative hearing orders in special education cases.
The complaint is the beginning of a major legal review of the rights of students with disabilities and the obligations of charter schools.
The charter school law clearly spells out the obligation of charter schools,
A charter school shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools,
Success argues that the same law exempts a charter schools from regulations that apply to public schools.
A charter school shall be exempt from all other state and local laws, rules, regulations or policies governing public or private schools, boards of education, school districts and political subdivisions including those relating to school personnel and students,
Does the failure to comply with the Individuals with Disabilities Education Act (IDEA) and state regulations governing Student with Disabilities a violation of a student civil rights, or, does the law shield charter schools from the regulations? The complaint encapsulates the argument cogently,
By refusing to comply with these mandates, Success Academy and its schools have effectively declared that they are not subject to the due process provisions of the IDEA and New York Education Law, and that students with disabilities at Success Academy schools do not have the same legal protections as students with disabilities at other public schools.
Complaints to the commissioner are the first step, and, not uncommon, the NYSED attorneys review the complaint; the process can take months, and issues a ruling. The ruling can be challenged in the courts.
Education Law §310 provides that persons considering themselves aggrieved by an action taken at a school district meeting or by school authorities may appeal to the Commissioner of Education for a review of such action. In addition, Education Law §306 allows the Commissioner of Education to remove a trustee, member of a board of education and certain other school officers for willful misconduct or neglect of duty.
Procedures for the presentation and defense of such appeals and for the conduct of proceedings for the removal of school officials are contained in regulations of the Commissioner of Education.
To further complicate the issue there are two chartering entities in New York State, the Charter School Institute, part of the SUNY Board of Trustees and the State Department of Education operating under the auspices of the Board of Regents The two organizations have different regulations governing the granting and renewal of charters. You may remember the Charter School Institute issued draft regulations claiming that the Institute had the power to certify charter school teachers. The Regents sued and the courts sustained the suit.
Does the chartering agency, the SUNY Charter Institute, agree with Success Academy’s interpretation of the law in regard to special education services? If it does not agree, why did it continue to renew charters for the SA schools?
The Regents and the SUNY Charter Institute have different standards for the granting of charters, SUNY is far more lenient, and, a number of schools that have turned down by the Regents have been granted charters by the SUNY Charter Institute.
The former board chair of the SUNY Charter School Institute, Daniel Loeb, is a financier, not an educator.
In my view the original decision to grant charter authorizing authority to two organizations was a mistake. A number of years ago, Merryl Tisch, at that time the Chancellor of the Board of Regents, tried to merge the charter granting organizations, without success. Ironically, Tisch is now the deputy chair of the SUNY Board of Trustees.
The threshold issue is whether charter schools must comply with the regulations in regard to special education student placements and decisions of hearing officers
Success Academy and the SA Schools … take… the position that pendency orders do not apply to their schools. When the parents obtained pendency orders for the last agreed upon placements, the SA Schools—represented by a Success Academy attorney—took the position that they did not need to comply with the pendency orders because they disagreed with the order and the hearing officer’s authority to issue the order, forcing parents to litigate further to obtain the ordered relief, and resulting in further delays in the students receiving ordered instruction.
If NYSED rules that failing to comply with orders of hearing officers, pendency orders, the next step is a remedy. The complaint outlines a series of remedial actions including a compliance plan. The commissioner can also assign a monitor to oversee the application of the remedies.
SA can ask that the implementation of the order is tolled until all legal remedies are exhausted; the commissioner could deny the request indicating that the children impacted would suffer irreparable damage.
If SA refuses to comply the commissioner does have the power to remove the “school officials” who are failing to implement the remedy.
There is no question that SA will appeal any adverse decisions into the courts.
Across the street, (Washington Avenue actually separates the State Education Department headquarters from the legislative and executive offices) the legislature can amend the charter school law to remove any ambiguity.
Appeals to the commissioner decisions typically take many months before a decision is rendered, a speedy decision, namely, while the legislation is in session, is important; especially if the law has to be amended.
The commissioner can ask the SUNY Charter Institute if they were aware of the actions of SA in refusing to implement the decisions of impartial hearing officers, if they were: why weren’t they taking actions to force SA to comply with the orders? If they were not aware; why not? As the renewer of charters wouldn’t they have the obligation of monitoring the performance of schools prior to renewing charters?
While appeals to the commissioner are based upon precedent it is unusual for an appeal is so loaded with political implications. In the corridors of the marble floored ornate legislature someone will whisper to someone else: what does Andrew think? He may be holding his finger in the air; he may have no interest.
The Advocates for Children complaint may result in a consent agreement, resolving the complaint, or, a major legal decision defining the obligations of charter schools and the supervisory authority of the commissioner.
Next week’s Albany Regent Meeting should be interesting.