Virtual charter school admissions for students with disabilities in Wisconsin

Families of students with IEPs who have applied for open enrollment to a Wisconsin virtual charter school for the 2010-11 school year will likely have received their notices of approval or denial by now. A previous post took a preliminary look at virtual school enrollments for students with IEPs, which are lower than the proportion of students with IEPs in the general school population. Since then, the following information has been obtained, via public records request, from the state Department of Public Instruction, regarding open enrollment applications for admission to virtual schools by students with IEPs last year (2009). (Most Wisconsin charter schools are included in the table below, but virtual schools with de minimis enrollment have not been included. Also, the information on denials below focuses on denials by virtual school districts for reasons of "special education space not available" or "special education program not available"; and denials made for other reasons by the virtual school district or denials made by the student's resident school district aren't included here.) Enrollment information listed below is from the DPI web site.



There seems to be strong interest by students with IEPs in virtual schools. (Note, however, that since up to three school districts can be selected in an open enrollment application, the actual number of students with IEPs who applied for virtual school admission is likely less than the 1,377 open enrollment applications by students with IEPs shown above.)  Rejection rates and reasons for rejection also appear to vary from virtual school to virtual school. I'll note that one of the districts with a nominally high application approval rate has in the past issued approval for open enrollment into the district, but then assigned the virtual school applicant to a brick-and-mortar school, with the practical effect of denying the applicant's request to be enrolled in a virtual school (since there is no reason to expect that the applicant will enroll in a brick-and-mortar school long-distance), and the procedural effect of precluding the applicant's ability to appeal the brick-and-mortar "assignment" decision to the DPI (since an open enrollment denial can be appealed, but an assignment to a specific school cannot be appealed). It would be useful to know how widespread this practice is, but this information is not collected or tracked by the DPI.

When a virtual school's chartering district rejects the enrollment application of a student with an IEP, presumably it does so based on the IEP on hand that is forwarded by the student's resident school district, which is likely to have been developed for a brick-and-mortar setting and placement considerations specific to the student's resident school, and which may or may not be appropriately individualized for the virtual school setting and program to which the student has applied. No discussions are held with the student's parents or other members of the IEP team to determine appropriate placement or services prior to the approval or denial decision being rendered. A typical denial notice does not state or explain the criteria that the virtual school's chartering district applied to reach its determination that no special education program or space is "available" for the rejected applicant.

Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 prohibit discrimination on the basis of disability in federally funded public schools. This means that criteria for admission to a virtual school chartered by a school district that receives federal funds cannot treat a student with a disability differently from a student without a disability, unless necessary to achieve the mission of the program in question. Whose responsibility is it to ensure that Wisconsin virtual schools provide equal opportunity in admitting students with disabilities? It's unlikely that the chartering school district (LEA) whose admissions practices treat students with disabilities differently, and unlawfully, will police itself. It's also unlikely that the state Department of Public Instruction (SEA) can be expected to exercise appropriate oversight and guidance, when it neither tracks nor monitors admission practices or data that would prompt concern of a systemic problem. Representatives in the state legislature who are proponents of virtual schools, and whose efforts to lift the 5,250-student cap on virtual charter schools appear to have stalled, don't appear to be responsive to the suggestion that such legislation also include protections to ensure equal access for students with disabilities. Let's see if the Department of Education's newly expressed interest in reinvigorating civil rights enforcement for students with disabilities might lead to the Office for Civil Rights taking a careful look at admissions policies, procedures and criteria for students with disabilities who may be encountering unlawful barriers in being denied admission to Wisconsin virtual schools.

Virtual schools, students with IEPs, and Wisconsin open enrollment

Virtual schooling can be an educational choice with particular benefits for some students with disabilities. The recent study "Serving Students with Disabilities in State-level Virtual K-12 Public School Programs" by Eve Müller, Ph.D., published in September 2009 by the National Association of State Directors of Special Education (NASDSE)'s Project Forum, and funded by the U.S. Department of Education's Office of Special Education Programs, surveyed state education agencies nationwide regarding their virtual K-12 public school programs:

Eleven states described one or more benefits associated with serving students with disabilities in virtual K-12 public school programs. These include:

• accessibility of curriculum for students on long-term suspension or homebound placement;
• individualized attention;
• self-pacing of online education;
• availability of multi-media content and supplemental resources;
• students' needs for fewer behavioral supports since they are removed from the school building setting—especially students with attention deficit hyperactivity disorder (ADHD), autism, or emotional disturbance (ED); and
• creation of another placement option for students with disabilities and their families.

The report "Demystifying Special Education in Virtual Charter Schools" by Lauren Morando Rhim and Julie Kowal of Public Impact, published in January 2008 as part of the Primers in Special Education in Charter Schools series funded by the U.S. Department of Education, notes:

as public schools, virtual charter schools are required to abide by all federal education statutes, including the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act (ADA) and the Fourteenth Amendment of the U.S. Constitution....Consequently, [chartering agencies] are responsible for abiding by all special education rules and regulations, including conducting special education student identification and evaluation, developing individual education programs (IEPs) and providing individualized support, curricular modifications and adaptations as well as related services such as occupational, physical and speech therapy.

In Wisconsin, virtual schools are chartered through local education agencies (i.e. school districts); there is no current state-level virtual school program. This means that students who want to enroll in a virtual school but do not live in the school district which charters that virtual school can enroll in that virtual school only by applying for admission through Wisconsin's annual open enrollment process.

The Wisconsin open enrollment application period for the 2010-2011 school year starts today and runs for 2 weeks and 5 days (February 1-February 19, 2010). The open enrollment general information page on the Department of Public Instruction (DPI) web site shows 15 virtual schools (a few of which are new this year) for 2010-2011, chartered through 14 different school districts. Three virtual schools serve K-12, two serve K-8 only, one serves grades 6-8 only, two serve grades 6-12 only, and seven serve grades 9-12 only. Applicants are limited to 3 choices in their open enrollment applications.

An open enrollment application can be denied by the virtual school's school district if the applicant has been referred for a special education evaluation that was not completed prior to the application, or if special education or related services are not available, or if there is no space available in the special education or related services program. (Please note that there are several additional reasons—not covered in this post—as to why an open enrollment application can be denied by a school district that the applicant is seeking to transfer out of or into, which are summarized elsewhere on the DPI's general information page.)

A piece of information that is not publicized to parents is that a student with an IEP cannot be denied open enrollment on the basis of lack of space or services in the special education program if the parent has refused or revoked consent for special education services (DPI January 30, 2009 memo in Microsoft Word, accessed from the DPI web site by following the link to the "Public School Open Enrollment page," to the link titled "Special Education" under the "Information for School Districts" heading, to the link titled "DPI Memo January 2009 - Recent Changes in IDEA Law Affecting Open Enrollment"). Where a parent has refused or revoked consent for special education, "the child's application must be reviewed as an application for regular education."

Since a student's open enrollment application is limited to 3 choices, it would be useful for parents to know how much space and what services are available for the special education needs of their child, so that they can make full use of their limited selections. Unfortunately, this information isn't readily available. This information is not included in either the marketing web sites for the virtual schools or the school district web sites. A query to the DPI elicited the following response:

You can call the virtual charter schools to investigate the programs available at the school.  You can ask to speak with their special education director about your child’s needs.  However, it is important to understand that nothing a school district/virtual charter school/special education director tells you is a promise either of approval or denial and such conversations will not be accepted as part of the record in an open enrollment appeal.

The track record of Wisconsin virtual schools in approving or denying admissions applications for students with disabilities is not monitored by the DPI. School year 2009-10 is the first school year for which school-level information on open enrollment virtual school approvals or denials has been gathered by the DPI, but this information has not yet been compiled or published.

Enrollment (at November 2008) for students with disabilities in Wisconsin virtual schools is at a significantly lower proportion than the proportion of students with disabilities enrolled in Wisconsin public schools statewide (the following table is compiled from data from the DPI web site):

This information does not tell us why enrollment is proportionately lower in Wisconsin virtual schools for students with disabilities. We don't know how many students with disabilities apply for admission to virtual schools, how many are denied admission, and how many are approved but decline to enroll. It would also be useful to know how many denials are made on the grounds of "not enough space" in the special education program or related services (despite the fact that all virtual schools appears to have significantly proportionately lower enrollment by students with disabilities). Improved information will be a critical component of improving access to this educational alternative to students with disabilities who may benefit from this choice.