The New Segregation: School Choice in AZ Takes on a Different Meaning If Your Kid Has a Disability

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I didn't know it at the time, but what Jay Heiler did that night is known in education circles as "pushing out."

Legally, you can't tell a parent of a kid with a disability that the child can't attend your charter school. But you definitely can make it clear that the kid isn't wanted.

It's passive-aggressive, and it's prevalent. It was something I experienced again and again during the next year as I tried to find a charter school for Sophie.

I didn't start out pro-charter. In fact, Heiler and I had more than one run-in back in the day over his position on school choice. But parenthood can have a way of changing your politics, and by the time my older daughter, Annabelle, was ready for junior high, there were several terrific charter-school options for her. Ultimately, we sent Annabelle to an arts charter school, which so far has been a perfect fit. But Annabelle is what's known as a typical kid; she doesn't have a disability.

It was a much different experience with Sophie.

"Don't send her to our school. They'll make her sit in a room by herself all day," one special education teacher at a charter school told me.

Several explained that they'd love to have Sophie but just didn't have the right programs in place for a sixth-grader with Down syndrome.

During one school tour, I turned to the education director and asked, "So what do you think about having a kid with Down syndrome at your school?" The color drained from her face, and she sucked wind (really -- I heard it). "Well . . ." she began, clearly stalling. "Don't say anything!" I said before she could finish, mentally knocking that school off the list.

Another special education teacher advised me to pray over my decision.

And after a glance at Sophie, Jay Heiler didn't offer up a single charter school that was even an option for her.

We exchanged pleasantries that night at Pei Wei before saying goodbye, but the conversation with Heiler left a bad taste in my mouth. There are more than 500 charter schools in Arizona. How could there not be one for Sophie? I wasn't really surprised that he hadn't offered up one of his own rigorous, Great Books, Latin-immersion schools as an option for my daughter (although Great Hearts does have a Special Education section on its website, and I heard a rumor that there is actually a third-grader with Down syndrome at one of Heiler's schools -- which only makes the way he acted sting more), but I couldn't believe that Heiler -- champion of charter schools, a man with such disdain for public education in this country that he'd helped found a movement designed to create a shadow school system -- would suggest I send Sophie to a district school.

I set out to prove Heiler wrong.

In many ways, I wanted the same thing for Sophie that we'd found for Annabelle: a school with dedicated, creative teachers, small classes, an emphasis on both the arts and critical-thinking skills. Both girls wanted to know why Sophie couldn't go to school with Annabelle, but I knew in my heart that Annabelle's school wasn't right, and more than one staff member quietly had warned me against it.

No worries, I thought. I found just the right school for Annabelle. I'd find just the right one for Sophie, too.

I was terrified of junior high, particularly when it came to Sophie. If you could meet her, I think you'd understand. Sophie is smart, funny, and social, keenly aware of her surroundings, eager to learn. She's also the physical size of a small kindergartner, with about the same attention span, and an IQ that ranges from 55 to 85, depending who's doing the testing. Her math skills aren't so hot, but Sophie collects books like they're baseball cards, and she's currently writing a play. She takes ballet with typical kids, dances onstage alongside them. So far, in her almost 11 years, by and large, the challenges she hasn't met have been the ones we haven't given her.

I want to keep challenging Sophie.

I also want her to be safe and happy. I still have PTSD from my own middle-school experience. And so as I embarked on this quest to find the perfect school, the thought of tossing Sophie into a big, traditional junior high school setting with giant, sweaty boys, snotty, mean girls, and overwhelmed teachers made me crazy.

And I did go a little crazy in my quest to find a school.

I called teachers, lawmakers, administrators, lawyers -- everyone I knew in the Arizona education system. I stalked other parents at Special Olympics track meets, quizzing them about their kids' schools. I Googled for hours. I hired a consultant. I asked on girlinapartyhat.com, the blog I write about Sophie. Then I turned to the 21st-century water cooler, the surest way to find everything from a handyman to a heart surgeon: Facebook.

"Say you had a kid with Down syndrome in metro Phoenix. Where would you send her for the sixth grade?" I asked in a status update.


Finally, I expanded my Google search to "charter schools" and "special education." And then I realized what was wrong -- and how naive I'd been. This wasn't just a Phoenix issue, or an Arizona one. It was a national problem. Practically since the inception of the charter-school movement, complaints have been lodged and research conducted about the lack of special-needs students attending charters all over the country.

First, let's be clear about one thing: Charter schools are public schools, and both charters and district schools therefore are required by federal law to provide what is called FAPE, a "free and appropriate public education" to all students with disabilities.

To be fair, district schools aren't without fault when it comes to including special-needs students. School-choice proponents tout Arizona's open-enrollment policies, designed to allow kids to attend schools in districts outside their assigned residence boundaries, but the law is written to allow individual districts to make the decision to take a kid or not -- and, often, districts cap the number of kids with an IEP they'll take. (IEP stands for Individualized Education Program, the plan each qualifying special ed student must have in place.) Also, according to the Arizona Department of Education (but up for debate among civil rights law experts), even the geographically assigned school district is required to accept a kid with a disability but has the discretion to place the child at a particular school in the district, not necessarily in accordance with the parents' wishes.

FAPE means "free and appropriate public education," not "best."

But the bigger challenges are definitely in place at charter schools, and kids with disabilities aren't attending these schools in numbers proportional to district schools. Not even close. After a year of reporting, I've come up with four reasons: money, red tape, test scores, and because so few parents are willing to force the issue.

Again and again in my search for a charter school for Sophie, I heard that charters just don't get the same funding for special-needs students that district schools do. That's not true. Both the federal and state governments give both nonprofit charter and district schools money per capita for students with special needs, weighted by disability. For example, a kid with a speech delay will get his or her school less money than a kid with a mild-to-moderate intellectual disability (that's what Sophie has). The other area of reimbursement is for therapy -- including speech, physical, and occupational -- which is covered by Medicaid regardless of whether you are at a charter or district school.

But where a small charter school does have a point about funding is when it comes to economies of scale. A large, established district school can hire special education teachers to deal with their many charges; a newer charter school with just a couple of special ed students will have more trouble working with its resources. Don't get me wrong: On all levels, funding is woefully inadequate. Some experts estimate that special education is underfunded by 40 percent.

Second, there is the complicated bureaucratic landscape. The charter-school movement was created in direct response to what is viewed as a cumbersome and restrictive public education system. For example, while district schools still employ certified teachers, a charter school teacher in Arizona has no such requirement -- until it comes to special education.

Federal special ed law requires that a special education teacher be certified; this really throws a wrench in it for a charter. On top of that, an IEP involves a lot of paperwork, requires oversight, and often generates headaches. If it's not done right, the student probably won't be well-served -- and the school may be breaking the law.

The National Alliance for Public Charter Schools acknowledges that the special education gap is a significant problem -- so much so that it actually created another group, the National Center for Special Education in Charter Schools, to address the issue. In a recent report, the center explained why it's important to deal with special education services:

"Based on legal actions in New Orleans and Washington, D.C., and anecdotes from other cities where access and service provision are increasingly under a microscope, charter schools that fail to chart an intentional course related to students with disabilities might be subject to cumbersome regulatory burdens advanced by charter opponents."

In other words, don't do it because it's the right thing to do. Do it because otherwise, you'll have to deal with pesky regulations.

Third: test scores. These days, a school is judged by its students' performances on standardized tests. The state literally pastes a giant letter grade on the side of your school -- and it's not about how accommodating you are to kids with disabilities, or how hard your staff works. It's about how students do on tests like AIMS. Not all children with disabilities take standardized tests, but more do than you might imagine. Sophie does. And her scores are averaged in with the rest of the kids. That's not a big motivator for a high-performing school to want a kid like Sophie.

Fourth and finally, no one has done much of anything (not in Arizona, anyway) to force charter schools to comply with the law when it comes to welcoming special education students. I learned why firsthand. It's true that I probably could have figured out how to push Sophie into any of the charter schools I talked to over the last year (assuming she made it through the lottery process), but I chose not to. Why would I want my kid to attend a school where she's not wanted? To make a political point? I can't do that to my daughter.

And what about a parent who doesn't have the time and ridiculous inclination to research the charter school options in a 20-mile radius? I'm not afraid of an argument, or of hiring a lawyer to get my kid what she needs. But even I was left speechless on several occasions during my charter search. I can understand why so many other parents give up early in the process -- or never try at all.

So it's become a quiet problem. Including in Arizona, where the charter industry is booming.

Except for a few complaints buried deep in government bureaucracy, I could find almost nothing out there about the issue of Arizona charter schools failing to serve special-needs students. Repeated requests to public information officers and education-policy professors at Arizona State University went unanswered.

In fact, the most recent local research I found on the topic was a 1996 study by Joseph R. McKinney, a professor at Ball State University in Indiana. "The bottom line is that during the 1995-96 school year, only 262 children (4 percent) of the approximately 7,000 students enrolled in Arizona charter schools were served as special education students," McKinney wrote in "Charter Schools: A New Barrier for Children with Disabilities." The average number of special education students at the time was 10 percent to 12 percent, he reported.

But the current charter school/special ed problem has been well documented outside Arizona -- it's the subject of an ongoing class-action lawsuit by the Southern Poverty Law Center in New Orleans, a 2012 federal General Accounting Office investigation, and, recently, an op-ed in the New York Times that referenced extensive research done in New York.

"In East Harlem, data for the 2012-13 school year shows that most of the public open-enrollment elementary and middle schools have double -- and several have triple -- the proportion of special-needs kids of nearby charter schools," Andrea Gabor, a professor at Baruch College in New York, wrote in a piece published April 4.

Make no mistake, it's still a problem here, too. And not an insignificant one when you consider that of Arizona's 1.2 million school-age children, about 9 percent have special needs, according to the state organization Raising Special Kids.

I decided to crunch the most recent numbers I could find for Arizona. It's impossible to get the exact breakdown student by student because of privacy laws, but an analysis of district versus charter state budgets revealed huge gaps in the special-needs services provided at the two types of schools. In 2012-13, district schools spent about $763 per student on special education and related services. Charters spent $331 per kid during the same period.

I then analyzed the budget for each of the 520 charter schools in operation in 2012-13, looking specifically at four of the most profound disability areas: autism; mild/moderate/severe intellectual disability; multiple disability; and multiple disability with severe sensory impairment. Of the 520 schools, 273 didn't serve a single child with any of those diagnoses during that entire school year.

The GAO study from 2012 also revealed a discrepancy in the overall numbers of special-needs students served at charter versus district schools, both nationally and in Arizona. And that research raised another troubling statistic. When charters did serve special-needs students, the GAO reported, they served them in disproportionately large numbers. The GAO documented that in almost 12 percent of charter schools nationwide, more than 20 percent of the student population had a disability that qualified them for special ed services.

Metro Phoenix now has two charter schools that are designed to pretty much exclusively serve children with autism. And Jay Heiler finally got his vouchers, now called Empowerment Savings Accounts, that go to kids with special needs whose parents can't find public (district or charter) options and want to send them to private schools that serve kids with special needs. Or home school.

There are plenty of schools that educate children with profound special needs and even more, like the school my older daughter attends, that cater to the high-achieving child. But what about Sophie, who thrives when she's mainstreamed with typical kids her own age?

In a state that prides itself on offering the nation's best in school choice, the options are shrinking in at least one category -- and, increasingly, special-needs kids are educated separately from their typical peers.

It's the new segregation.

Clint Bolick has a different name for what's going on: "product specialization." If Jay Heiler is the godfather of Arizona's charter-school movement, Bolick has earned a whack at the title on a national level. As head of litigation for the Goldwater Institute, Bolick has argued school-choice cases before the U.S. Supreme Court and has been influential in the movement at just about every stage.

He sits on the boards of both Great Hearts Academies and the BASIS schools (the latter had two of the top 10 schools in the latest U.S. News and World Report rankings last month), and Bolick says his biggest personal challenge was deciding whether to send his own high-achieving children to Great Hearts or Basis. (The kids chose BASIS.)

"I don't know what I'd do if our kids had a different set of needs," he admits.

And what if product specialization doesn't happen on every level? What if there isn't a charter school that specializes in mainstreaming kids with special needs?

"That may be why we will always have district public schools," Bolick says -- to provide services other schools haven't opened to provide.

Lisa Graham Keegan, Arizona's former superintendent of public instruction who's now a well-respected local and national consultant and leader on education issues, has a different perspective. Keegan admits this might be because she has a nephew with special needs whom she's watched try to navigate the education system. She's proud of a lot of what's been accomplished by the school-choice movement, but not when it comes to special education.

"To me, there's no excuse," Keegan says. "The charter school movement is a public school movement, and this movement has not forwarded the interests of special-needs kids."

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Amy Silverman is a two-time winner of the Arizona Press Club’s Journalist of the Year award. Her work has appeared on the radio show This American Life and in the New York Times, the Washington Post, Lenny Letter, and Brain, Child. She’s the co-curator of the live reading series Bar Flies, and a commentator for KJZZ, the NPR affiliate in Phoenix. Silverman is the author of the book My Heart Can’t Even Believe It: A Story of Science, Love, and Down Syndrome (Woodbine House 2016). Follow her on Instagram (@amysilverman), Twitter (@amysilvermanaz), and at amy-silverman.com.