Court Rules That Charter Schools Can Dismiss Student Without a Due Process Hearing

This article was originally published by The Law Offices of Bonnie Z. Yates blog on August 6, 2013. It has been reposted here with permission.

By Rosa K. Hirji
Children’s Rights Litigation Committee
American Bar Association

Scott B., a 14 year old student with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was dismissed from his charter school by letter from the principal for bringing a knife to school and showing it to another student.  There was no hearing, and no finding to support the decision by the charter school’s Board of Trustees in the one-sentence dismissal letter.  On June 14, 2013, the California Court of Appeal[1] upheld the dismissal and ruled that charter schools are exempt from California law requiring due process hearing procedures for students undergoing an expulsion from their local public school. 
Dismissal or Expulsion?
The decision in Scott B. allows charter schools to unilaterally dismiss a student from their school with very little protection against unfair removals.  The court held that the due process hearing protections of the California Education Code do not apply to charter schools because Scott was dismissed rather than expelled.  The court reasoned that an expulsion results in a delay in the Student’s legitimate interest in an education, in that the student cannot re-enroll in a school district for the period of expulsion, and, when he does re-enroll, the student must notify the school of the expulsion thereby negatively impacting the student’s reputation.  But a dismissal of a student from a charter school, according to the court, does not raise such concerns to the same degree, reasoning that, after being dismissed, the student is free to enroll in the local public school. Unlike public schools, the Court observed, a charter school is a school of choice. 
Due Process Is a Constitutional Right
California laws governing school expulsions are designed to afford a fair process to the student undergoing an expulsion.  This right is guaranteed by the U.S. Constitution, under the Due Process Clause, which provides that when a state affords its citizens certain benefits, it also forbids the state from depriving citizens of those benefits without safeguards sufficient to ensure fundamental fairness.  In Goss v. Lopez, [2] the U.S. Supreme Court held that where a State directs the provision of a free education to all, as is the case in California, it may not withdraw those rights because of misconduct by the student, without fundamentally fair procedures to determine whether the misconduct occurred. 

California law lists the circumstances under which a student can be deprived of an education and the type of process that is due to students facing expulsion.  California laws governing expulsions are also designed to ensure that the disciplinary sanctions are proportionate to the offense.  These protections are critical in light of reports by civil rights groups that no discretion, zero tolerance discipline impacts students of color and students with disabilities at disproportionately high rates. 
For example, the California Education Code entitles a student that is enrolled in their local public school and referred for expulsion to a due process hearing that is typically chaired by three administrators from the district and the school principal presents its evidence.  The student, or his parents if a minor, has the right to question the school’s evidence, and also has the right to present his or her own version of events.  Unless the student committed a “zero tolerance” offense[3], the district must consider whether (1) other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or (2) due to the nature of the act, the presence of the pupil causes continuing danger to the physical safety of the pupil or others.  A student can be expelled for a maximum of one year, and during the period of expulsion, has the right to attend an alternative school, or community day school. The student or parent has the right to appeal the expulsion to their local county board of education[4]. 
The hearing and the appeals process is informal, and while the student or parent has the right to bring a representative or an attorney, the process is accessible to unrepresented families.  Pursuant to Scott B., however, the only recourse to the student victim of an unfair dismissal from a charter school is to go to court.  The courts will review “dismissals” from charter schools, but only if they are “arbitrary or capricious” because there is no underlying right to a hearing.  The arbitrary and/or capricious standard is an extremely high one that tips the scales of justice in favor of charter schools. 
The Court in Scott B. did not address the issue of what process is due to the minor plaintiff under the U.S. Constitution.  Instead, the court ruled only that the California due process clause was not violated by the charter school.  By reasoning that students can always return to their public school within a day of their dismissal, one reading of the court’s decision is that it lays the groundwork for a court to find in a future case that the student is without the right to a hearing because no deprivation of education has occurred – and thus there is no right to a hearing.  Such a rationale becomes slippery and the court goes too far down the slope in its ruling in Scott B.  After all, it is also true that an expelled public school student has a legally protected interest in public education and can attend a community day school post-expulsion [5]. In fact, the assertion that a student dismissed from a charter school is free to enroll in a public school contradicts the California Department of Education’s own instructions to school districts that once a student is expelled from a charter school, “[t]he district may choose to treat a student expelled from a charter school in the same manner as a student expelled from the district.” Of course, post Scott B. charter schools can simply characterize the “expulsion” as a dismissal.  The San Diego County Office of Education instructs school districts to review charter school removals to determine whether the district would have expelled the student and if so, to enroll that child in an alternative school.
How public schools will now respond to enrollment requests by “dismissed” former charter school students after Scott B. has yet to be determined.   We believe it actionable should a dismissed former charter school student find it more difficult to enroll (i.e. procedures, level of difficulty, and requirements) than the enrolling child that has no “dismissal” on his or her record.   Please contact us to discuss this further, as applicable. 
Scott B. Will Fuel Selective Enrollment by Charter Schools
Communities from across the country are raising alarm that charter schools are selective of certain students in order to deliver better outcomes.  Such selectiveness includes concerns that charter schools screen out students with special education needs (in particular those with severe disabilities), and have higher rates of suspension and expulsion than public schools.  According the Reuters, “across the United States, charters aggressively screen student applicants, assessing their academic records, parental support, disciplinary history, motivation, special needs and even their citizenship, sometimes in violation of state and federal law.”
Even the Secretary of Education, Arne Duncan, whose policies have encouraged the rise of charter schools, acknowledges that “[i]n many cities . . . charters are substantially more likely to suspend and expel students than other public schools.”
This decision will impact an increasing number of California public school students who are enrolled in a charter school.  The number of charter schools across the country in the last ten years has skyrocketed.  California has the highest number of charter schools in the country, with over 110 new schools opening in 2012-2013.  The most significant increase in number of charters schools last year occurred within boundaries of the Los Angeles Unified School District. 
Charter schools promote the idea that, like public schools, charter schools are tuition free and open to all prospective students.  Indeed, the California Education Code states that charter schools are part of California’s public school system and therefore are entitled to full and fair state funding.[6]  Yet, made clear by the Scott B. decision, is that behind the “public” façade of charter schools, students don’t have the same rights under California laws as they would in a traditional public school. 
While charter schools that receive federal funding must still comply with civil rights and other protective statutes – such as the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act, and No Child Left Behind Act – the lack of oversight by a public board of education means that it is up to students and parents to independently enforce the laws through expensive litigation.  In Los Angeles, charter schools have come under heavy criticism for turning away students with disabilities.  This is comparable to concerns raised by communities across the country.  According to a study by the UCLA Civil Rights Project, that expressed alarm with the role of charter schools in creating a higher level of segregation amongst students that are African American, “charter schools, in many ways, have more extensive segregation than other public schools…[c]harter schools attract a higher percentage of black students than traditional public schools, in part because they tend to be located in urban areas…[a]s a result, charter school enrollment patterns display high levels of minority segregation, trends that are particularly severe for black students.” In fact, up until very recently, the Office for Civil Rights of the Department of Education (OCR) did not collect data on civil rights outcomes for students in charter schools.  OCR will release for the first time, data related to charter school for 2011-2012 school year in the fall of 2013.  
The school from which Scott B. was “dismissed,” Orange County School of the Arts (OCSA), is a unique and elite charter school – and selective, it appears, from the data. OCSA receives up to $5 million a year in corporate and private donations.  OCSA also receives tax payer money to support its students. OCSA is ranked as one of the top 10 schools in California, and touts an academic program that aims to produce high achieving and motivated scholars.  Therefore, a dismissal from OCSA is likely a tremendous loss of opportunity for Scott B.  OCSA is also racially and economically exclusive.  Half of the students enrolled at OCSA are white, whereas white students comprise only 2.8% of students enrolled in the Santa Ana School District, where the charter school is located.  Similarly, 6.4% of OCSA students are eligible for free and reduced meals, compared to 75.7% of students enrolled in the District [7]. 
The decision of Scott B. is characteristically lacking in the public policy considerations raised here, but this is not atypical of court decisions.  The decision will impact communities on the ground, however, in a manner not addressed by the court.  It will facilitate the ability of charter schools to deny the benefits of a publicly supported education to students, creating a further unequal education system.  The promises made by the pro-charter groups that charter schools are open to all students are belied by studies, anecdotal evidence, and now, the California Court of Appeal. The structures that allow charter schools to exist is marked by the absence of protections that are traditionally guaranteed by public schools, protections that only become apparent when families and students begin to face a denial of what they initially perceived to be their right.  Children who are disadvantaged by a disability, poverty, or in a minority group may not have the same “access” to charter schools as those without. 
—————————–
[1] Scott B. v. Board of Trustees of Orange County High School of the Arts, 217 Cal. App. 4th 117 (Cal. App. 4th Dist. 2013)
[2] Goss v. Lopez, 419 US 565 (1975)
[3] See Cal. Educ. Code §48915 (c); See CDE’s description of how discretionary expulsions work in California, http://www.cde.ca.gov/ls/ss/se/zerotolerance.asp
[4] See Cal. Educ. Code § 48900 et seq.
[5] See Cal. Educ. Code § 48915.2
[6] Cal. Educ. Code § 47615.
[7] See Ed-Data, http://www.ed-data.k12.ca.us/App_Resx/EdDataClassic/fsTwoPanel.aspx?#!bottom=/_layouts/EdDataClassic/profile.asp?Tab=1&level=07&reportnumber=16&county=30&district=66670&school=3030723
 
photo courtesy: http://www.bonniezyates.com/
Scott B., a 14 year old student with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was dismissed from his charter school by letter from the principal for bringing a knife to school and showing it to another student.  There was no hearing, and no finding to support the decision by the charter school’s Board of Trustees in the one-sentence dismissal letter.  On June 14, 2013, the California Court of Appeal[1] upheld the dismissal and ruled that charter schools are exempt from California law requiring due process hearing procedures for students undergoing an expulsion from their local public school.
Dismissal or Expulsion?
The decision in Scott B. allows charter schools to unilaterally dismiss a student from their school with very little protection against unfair removals.  The court held that the due process hearing protections of the California Education Code do not apply to charter schools because Scott was dismissed rather than expelled.  The court reasoned that an expulsion results in a delay in the Student’s legitimate interest in an education in that the student cannot re-enroll in a school district for the period of expulsion, and, when he does re-enroll, the student must notify the school of the expulsion thereby negatively impacting the student’s reputation.  But a dismissal of a student from a charter school, according to the court, does not raise such concerns to the same degree reasoning that after being dismissed, the student is free to enroll in the local public school.   Unlike public schools, the Court observed, a charter school is a school of choice.
Due Process Is a Constitutional Right
California laws governing school expulsions are designed to afford a fair process to the student undergoing an expulsion.  This right is guaranteed by the U.S. Constitution, under the Due Process Clause, which provides that when a state affords its citizens certain benefits, it also forbids the state from depriving citizens of those benefits without safeguards sufficient to ensure fundamental fairness.  In Goss v. Lopez, [2] the U.S. Supreme Court held that where a State directs the provision of a free education to all, as is the case in California, it may not withdraw those rights because of misconduct by the student, without fundamentally fair procedures to determine whether the misconduct occurred.
California law lists the circumstances under which a student can be deprived of an education and the type of process that is due to students facing expulsion.  California laws governing expulsions are also designed to ensure that the disciplinary sanctions are proportionate to the offense.  These protections are critical in light of reports by civil rights groups (outside link) that no discretion, zero tolerance discipline impacts students of color and students with disabilities at disproportionately high rates.
For example, the California Education Code entitles a student that is enrolled in their local public school and referred for expulsion to a due process hearing that is typically chaired by three administrators from the district and the school principal presents its evidence.  The student, or his parents if a minor, has the right to question the school’s evidence, and also has the right to present his or her own version of events.  Unless the student committed a “zero tolerance” offense[3], the district must consider whether (1) other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or (2) due to the nature of the act, the presence of the pupil causes continuing danger to the physical safety of the pupil or others.  A student can be expelled for a maximum of one year, and during the period of expulsion, has the right to attend an alternative school, or community day school. The student or parent has the right to appeal the expulsion to their local county board of education. [4]
The hearing and the appeals process is informal, and while the student or parent has the right to bring a representative or an attorney, the process is accessible to unrepresented families.  Pursuant to Scott B., however, the only recourse to the student victim of an unfair dismissal from a charter school is to go to court.  The courts will review “dismissals” from charter schools, but only if they are “arbitrary or capricious” because there is no underlying right to a hearing.  The arbitrary and/or capricious standard is an extremely high one that tips the scales of justice in favor of charter schools.
The Court in Scott B. did not address the issue of what process is due to the minor plaintiff under the U.S. Constitution.  Instead, the court ruled only that the California due process clause was not violated by the charter school.  By reasoning that students can always return to their public school within a day of their dismissal, one reading of the court’s decision is that it lays the groundwork for a court to find in a future case that the student is without the right to a hearing because no deprivation of education has occurred – and thus there is no right to a hearing.  Such a rationale becomes slippery and the court goes too far down the slope in its ruling in Scott B.  After all, it is also true that an expelled public school student has a legally protected interest in public education and can attend a community day school post-expulsion.[5] In fact, the assertion that a student dismissed from a charter school is free to enroll in a public school contradicts the California Department of Education’s own instructions to school districts that once a student is expelled from a charter school, “[t]he district may choose to treat a student expelled from a charter school in the same manner as a student expelled from the district.” Of course, post Scott B. charter schools can simply characterize the “expulsion” as a dismissal.  The San Diego County Office of Education (outside link) instructs school districts to review charter school removals to determine whether the district would have expelled the student and if so, to enroll that child in an alternative school.
How public schools will now respond to enrollment requests by “dismissed” former charter school students after Scott B. has yet to be determined.   We believe it actionable should a dismissed former charter school student find it more difficult to enroll (i.e. procedures, level of difficulty, and requirements) than the enrolling child that has no “dismissal” on his or her record.   Please contact us to discuss this further, as applicable.
Scott B. Will Fuel Selective Enrollment by Charter Schools
Communities from across the country are raising alarm that charter schools are selective of certain students in order to deliver better outcomes.  Such selectiveness includes concerns that charter schools screen out students with special education needs (in particular those with severe disabilities), and have higher rates of suspension and expulsion than public schools.  According the Reuters (outside source), “across the United States, charters aggressively screen student applicants, assessing their academic records, parental support, disciplinary history, motivation, special needs and even their citizenship, sometimes in violation of state and federal law.”
Even the Secretary of Education, Arne Duncan (outside source), whose policies have encouraged the rise of charter schools, acknowledges that “[i]n many cities . . . charters are substantially more likely to suspend and expel students than other public schools.”
This decision will impact an increasing number of California public school students who are enrolled in a charter school.  The number of charter schools across the country in the last ten years has skyrocketed.  California (outside source) has the highest number of charter schools in the country, with over 110 new schools opening in 2012-2013.  The most significant increase in number of charters schools last year occurred within boundaries of the Los Angeles Unified School District.
Charter schools promote the idea that, like public schools, charter schools are tuition free and open to all prospective students.  Indeed, the California Education Code states that charter schools are part of California’s public school system and therefore are entitled to full and fair state funding.[6]  Yet, made clear by the Scott B. decision, is that behind the “public” façade of charter schools, students don’t have the same rights under California laws as they would in a traditional public school.
While charter schools that receive federal funding must still comply with civil rights and other protective statutes – such as the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act, and No Child Left Behind Act – the lack of oversight by a public board of education means that it is up to students and parents to independently enforce the laws through expensive litigation.  In Los Angeles, charter schools have come under heavy criticism (outside source) for turning away students with disabilities.  This is comparable to concerns raised by communities across the country.  According to a study by the UCLA Civil Rights Project (outside source), that expressed alarm with the role of charter schools in creating a higher level of segregation amongst students that are African American, “charter schools, in many ways, have more extensive segregation than other public schools…[c]harter schools attract a higher percentage of black students than traditional public schools, in part because they tend to be located in urban areas…[a]s a result, charter school enrollment patterns display high levels of minority segregation, trends that are particularly severe for black students.” In fact, up until very recently, the Office for Civil Rights of the Department of Education (OCR) (outside source) did not collect data on civil rights outcomes for students in charter schools.  OCR will release for the first time, data related to charter school for 2011-2012 school year in the fall of 2013.
The school from which Scott B. was “dismissed,” Orange County School of the Arts (OCSA) (outside source), is a unique and elite charter school – and selective, it appears, from the data. OCSA receives up to $5 million a year in corporate and private donations.  OCSA also receives tax payer money to support its students. OCSA is ranked as one of the top 10 schools in California, and touts an academic program that aims to produce high achieving and motivated scholars.  Therefore, a dismissal from OCSA is likely a tremendous loss of opportunity for Scott B.  OCSA is also racially and economically exclusive.  Half of the students enrolled at OCSA are white, whereas white students comprise only 2.8% of students enrolled in the Santa Ana School District, where the charter school is located.  Similarly, 6.4% of OCSA students are eligible for free and reduced meals, compared to 75.7% of students enrolled in the District.[7]
The decision of Scott B. is characteristically lacking in the public policy considerations raised here, but this is not atypical of court decisions.  The decision will impact communities on the ground, however, in a manner not addressed by the court.  It will facilitate the ability of charter schools to deny the benefits of a publicly supported education to students, creating a further unequal education system.  The promises made by the pro-charter groups that charter schools are open to all students are belied by studies, anecdotal evidence, and now, the California Court of Appeal. The structures that allow charter schools to exist is marked by the absence of protections that are traditionally guaranteed by public schools, protections that only become apparent when families and students begin to face a denial of what they initially perceived to be their right.  Children who are disadvantaged by a disability, poverty, or in a minority group may not have the same “access” to charter schools as those without.
– See more at: http://www.bonniezyates.com/blogs/articles/court-rules-charter-schools-can-dismiss-student-without-due/#_ftn2
Scott B., a 14 year old student with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was dismissed from his charter school by letter from the principal for bringing a knife to school and showing it to another student.  There was no hearing, and no finding to support the decision by the charter school’s Board of Trustees in the one-sentence dismissal letter.  On June 14, 2013, the California Court of Appeal[1] upheld the dismissal and ruled that charter schools are exempt from California law requiring due process hearing procedures for students undergoing an expulsion from their local public school.
Dismissal or Expulsion?
The decision in Scott B. allows charter schools to unilaterally dismiss a student from their school with very little protection against unfair removals.  The court held that the due process hearing protections of the California Education Code do not apply to charter schools because Scott was dismissed rather than expelled.  The court reasoned that an expulsion results in a delay in the Student’s legitimate interest in an education in that the student cannot re-enroll in a school district for the period of expulsion, and, when he does re-enroll, the student must notify the school of the expulsion thereby negatively impacting the student’s reputation.  But a dismissal of a student from a charter school, according to the court, does not raise such concerns to the same degree reasoning that after being dismissed, the student is free to enroll in the local public school.   Unlike public schools, the Court observed, a charter school is a school of choice.
Due Process Is a Constitutional Right
California laws governing school expulsions are designed to afford a fair process to the student undergoing an expulsion.  This right is guaranteed by the U.S. Constitution, under the Due Process Clause, which provides that when a state affords its citizens certain benefits, it also forbids the state from depriving citizens of those benefits without safeguards sufficient to ensure fundamental fairness.  In Goss v. Lopez, [2] the U.S. Supreme Court held that where a State directs the provision of a free education to all, as is the case in California, it may not withdraw those rights because of misconduct by the student, without fundamentally fair procedures to determine whether the misconduct occurred.
California law lists the circumstances under which a student can be deprived of an education and the type of process that is due to students facing expulsion.  California laws governing expulsions are also designed to ensure that the disciplinary sanctions are proportionate to the offense.  These protections are critical in light of reports by civil rights groups (outside link) that no discretion, zero tolerance discipline impacts students of color and students with disabilities at disproportionately high rates.
For example, the California Education Code entitles a student that is enrolled in their local public school and referred for expulsion to a due process hearing that is typically chaired by three administrators from the district and the school principal presents its evidence.  The student, or his parents if a minor, has the right to question the school’s evidence, and also has the right to present his or her own version of events.  Unless the student committed a “zero tolerance” offense[3], the district must consider whether (1) other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or (2) due to the nature of the act, the presence of the pupil causes continuing danger to the physical safety of the pupil or others.  A student can be expelled for a maximum of one year, and during the period of expulsion, has the right to attend an alternative school, or community day school. The student or parent has the right to appeal the expulsion to their local county board of education. [4]
The hearing and the appeals process is informal, and while the student or parent has the right to bring a representative or an attorney, the process is accessible to unrepresented families.  Pursuant to Scott B., however, the only recourse to the student victim of an unfair dismissal from a charter school is to go to court.  The courts will review “dismissals” from charter schools, but only if they are “arbitrary or capricious” because there is no underlying right to a hearing.  The arbitrary and/or capricious standard is an extremely high one that tips the scales of justice in favor of charter schools.
The Court in Scott B. did not address the issue of what process is due to the minor plaintiff under the U.S. Constitution.  Instead, the court ruled only that the California due process clause was not violated by the charter school.  By reasoning that students can always return to their public school within a day of their dismissal, one reading of the court’s decision is that it lays the groundwork for a court to find in a future case that the student is without the right to a hearing because no deprivation of education has occurred – and thus there is no right to a hearing.  Such a rationale becomes slippery and the court goes too far down the slope in its ruling in Scott B.  After all, it is also true that an expelled public school student has a legally protected interest in public education and can attend a community day school post-expulsion.[5] In fact, the assertion that a student dismissed from a charter school is free to enroll in a public school contradicts the California Department of Education’s own instructions to school districts that once a student is expelled from a charter school, “[t]he district may choose to treat a student expelled from a charter school in the same manner as a student expelled from the district.” Of course, post Scott B. charter schools can simply characterize the “expulsion” as a dismissal.  The San Diego County Office of Education (outside link) instructs school districts to review charter school removals to determine whether the district would have expelled the student and if so, to enroll that child in an alternative school.
How public schools will now respond to enrollment requests by “dismissed” former charter school students after Scott B. has yet to be determined.   We believe it actionable should a dismissed former charter school student find it more difficult to enroll (i.e. procedures, level of difficulty, and requirements) than the enrolling child that has no “dismissal” on his or her record.   Please contact us to discuss this further, as applicable.
Scott B. Will Fuel Selective Enrollment by Charter Schools
Communities from across the country are raising alarm that charter schools are selective of certain students in order to deliver better outcomes.  Such selectiveness includes concerns that charter schools screen out students with special education needs (in particular those with severe disabilities), and have higher rates of suspension and expulsion than public schools.  According the Reuters (outside source), “across the United States, charters aggressively screen student applicants, assessing their academic records, parental support, disciplinary history, motivation, special needs and even their citizenship, sometimes in violation of state and federal law.”
Even the Secretary of Education, Arne Duncan (outside source), whose policies have encouraged the rise of charter schools, acknowledges that “[i]n many cities . . . charters are substantially more likely to suspend and expel students than other public schools.”
This decision will impact an increasing number of California public school students who are enrolled in a charter school.  The number of charter schools across the country in the last ten years has skyrocketed.  California (outside source) has the highest number of charter schools in the country, with over 110 new schools opening in 2012-2013.  The most significant increase in number of charters schools last year occurred within boundaries of the Los Angeles Unified School District.
Charter schools promote the idea that, like public schools, charter schools are tuition free and open to all prospective students.  Indeed, the California Education Code states that charter schools are part of California’s public school system and therefore are entitled to full and fair state funding.[6]  Yet, made clear by the Scott B. decision, is that behind the “public” façade of charter schools, students don’t have the same rights under California laws as they would in a traditional public school.
While charter schools that receive federal funding must still comply with civil rights and other protective statutes – such as the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act, and No Child Left Behind Act – the lack of oversight by a public board of education means that it is up to students and parents to independently enforce the laws through expensive litigation.  In Los Angeles, charter schools have come under heavy criticism (outside source) for turning away students with disabilities.  This is comparable to concerns raised by communities across the country.  According to a study by the UCLA Civil Rights Project (outside source), that expressed alarm with the role of charter schools in creating a higher level of segregation amongst students that are African American, “charter schools, in many ways, have more extensive segregation than other public schools…[c]harter schools attract a higher percentage of black students than traditional public schools, in part because they tend to be located in urban areas…[a]s a result, charter school enrollment patterns display high levels of minority segregation, trends that are particularly severe for black students.” In fact, up until very recently, the Office for Civil Rights of the Department of Education (OCR) (outside source) did not collect data on civil rights outcomes for students in charter schools.  OCR will release for the first time, data related to charter school for 2011-2012 school year in the fall of 2013.
The school from which Scott B. was “dismissed,” Orange County School of the Arts (OCSA) (outside source), is a unique and elite charter school – and selective, it appears, from the data. OCSA receives up to $5 million a year in corporate and private donations.  OCSA also receives tax payer money to support its students. OCSA is ranked as one of the top 10 schools in California, and touts an academic program that aims to produce high achieving and motivated scholars.  Therefore, a dismissal from OCSA is likely a tremendous loss of opportunity for Scott B.  OCSA is also racially and economically exclusive.  Half of the students enrolled at OCSA are white, whereas white students comprise only 2.8% of students enrolled in the Santa Ana School District, where the charter school is located.  Similarly, 6.4% of OCSA students are eligible for free and reduced meals, compared to 75.7% of students enrolled in the District.[7]
The decision of Scott B. is characteristically lacking in the public policy considerations raised here, but this is not atypical of court decisions.  The decision will impact communities on the ground, however, in a manner not addressed by the court.  It will facilitate the ability of charter schools to deny the benefits of a publicly supported education to students, creating a further unequal education system.  The promises made by the pro-charter groups that charter schools are open to all students are belied by studies, anecdotal evidence, and now, the California Court of Appeal. The structures that allow charter schools to exist is marked by the absence of protections that are traditionally guaranteed by public schools, protections that only become apparent when families and students begin to face a denial of what they initially perceived to be their right.  Children who are disadvantaged by a disability, poverty, or in a minority group may not have the same “access” to charter schools as those without.
– See more at: http://www.bonniezyates.com/blogs/articles/court-rules-charter-schools-can-dismiss-student-without-due/#_ftn2
Scott B., a 14 year old student with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was dismissed from his charter school by letter from the principal for bringing a knife to school and showing it to another student.  There was no hearing, and no finding to support the decision by the charter school’s Board of Trustees in the one-sentence dismissal letter.  On June 14, 2013, the California Court of Appeal[1] upheld the dismissal and ruled that charter schools are exempt from California law requiring due process hearing procedures for students undergoing an expulsion from their local public school.
Dismissal or Expulsion?
The decision in Scott B. allows charter schools to unilaterally dismiss a student from their school with very little protection against unfair removals.  The court held that the due process hearing protections of the California Education Code do not apply to charter schools because Scott was dismissed rather than expelled.  The court reasoned that an expulsion results in a delay in the Student’s legitimate interest in an education in that the student cannot re-enroll in a school district for the period of expulsion, and, when he does re-enroll, the student must notify the school of the expulsion thereby negatively impacting the student’s reputation.  But a dismissal of a student from a charter school, according to the court, does not raise such concerns to the same degree reasoning that after being dismissed, the student is free to enroll in the local public school.   Unlike public schools, the Court observed, a charter school is a school of choice.
Due Process Is a Constitutional Right
California laws governing school expulsions are designed to afford a fair process to the student undergoing an expulsion.  This right is guaranteed by the U.S. Constitution, under the Due Process Clause, which provides that when a state affords its citizens certain benefits, it also forbids the state from depriving citizens of those benefits without safeguards sufficient to ensure fundamental fairness.  In Goss v. Lopez, [2] the U.S. Supreme Court held that where a State directs the provision of a free education to all, as is the case in California, it may not withdraw those rights because of misconduct by the student, without fundamentally fair procedures to determine whether the misconduct occurred.
California law lists the circumstances under which a student can be deprived of an education and the type of process that is due to students facing expulsion.  California laws governing expulsions are also designed to ensure that the disciplinary sanctions are proportionate to the offense.  These protections are critical in light of reports by civil rights groups (outside link) that no discretion, zero tolerance discipline impacts students of color and students with disabilities at disproportionately high rates.
For example, the California Education Code entitles a student that is enrolled in their local public school and referred for expulsion to a due process hearing that is typically chaired by three administrators from the district and the school principal presents its evidence.  The student, or his parents if a minor, has the right to question the school’s evidence, and also has the right to present his or her own version of events.  Unless the student committed a “zero tolerance” offense[3], the district must consider whether (1) other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or (2) due to the nature of the act, the presence of the pupil causes continuing danger to the physical safety of the pupil or others.  A student can be expelled for a maximum of one year, and during the period of expulsion, has the right to attend an alternative school, or community day school. The student or parent has the right to appeal the expulsion to their local county board of education. [4]
The hearing and the appeals process is informal, and while the student or parent has the right to bring a representative or an attorney, the process is accessible to unrepresented families.  Pursuant to Scott B., however, the only recourse to the student victim of an unfair dismissal from a charter school is to go to court.  The courts will review “dismissals” from charter schools, but only if they are “arbitrary or capricious” because there is no underlying right to a hearing.  The arbitrary and/or capricious standard is an extremely high one that tips the scales of justice in favor of charter schools.
The Court in Scott B. did not address the issue of what process is due to the minor plaintiff under the U.S. Constitution.  Instead, the court ruled only that the California due process clause was not violated by the charter school.  By reasoning that students can always return to their public school within a day of their dismissal, one reading of the court’s decision is that it lays the groundwork for a court to find in a future case that the student is without the right to a hearing because no deprivation of education has occurred – and thus there is no right to a hearing.  Such a rationale becomes slippery and the court goes too far down the slope in its ruling in Scott B.  After all, it is also true that an expelled public school student has a legally protected interest in public education and can attend a community day school post-expulsion.[5] In fact, the assertion that a student dismissed from a charter school is free to enroll in a public school contradicts the California Department of Education’s own instructions to school districts that once a student is expelled from a charter school, “[t]he district may choose to treat a student expelled from a charter school in the same manner as a student expelled from the district.” Of course, post Scott B. charter schools can simply characterize the “expulsion” as a dismissal.  The San Diego County Office of Education (outside link) instructs school districts to review charter school removals to determine whether the district would have expelled the student and if so, to enroll that child in an alternative school.
How public schools will now respond to enrollment requests by “dismissed” former charter school students after Scott B. has yet to be determined.   We believe it actionable should a dismissed former charter school student find it more difficult to enroll (i.e. procedures, level of difficulty, and requirements) than the enrolling child that has no “dismissal” on his or her record.   Please contact us to discuss this further, as applicable.
Scott B. Will Fuel Selective Enrollment by Charter Schools
Communities from across the country are raising alarm that charter schools are selective of certain students in order to deliver better outcomes.  Such selectiveness includes concerns that charter schools screen out students with special education needs (in particular those with severe disabilities), and have higher rates of suspension and expulsion than public schools.  According the Reuters (outside source), “across the United States, charters aggressively screen student applicants, assessing their academic records, parental support, disciplinary history, motivation, special needs and even their citizenship, sometimes in violation of state and federal law.”
Even the Secretary of Education, Arne Duncan (outside source), whose policies have encouraged the rise of charter schools, acknowledges that “[i]n many cities . . . charters are substantially more likely to suspend and expel students than other public schools.”
This decision will impact an increasing number of California public school students who are enrolled in a charter school.  The number of charter schools across the country in the last ten years has skyrocketed.  California (outside source) has the highest number of charter schools in the country, with over 110 new schools opening in 2012-2013.  The most significant increase in number of charters schools last year occurred within boundaries of the Los Angeles Unified School District.
Charter schools promote the idea that, like public schools, charter schools are tuition free and open to all prospective students.  Indeed, the California Education Code states that charter schools are part of California’s public school system and therefore are entitled to full and fair state funding.[6]  Yet, made clear by the Scott B. decision, is that behind the “public” façade of charter schools, students don’t have the same rights under California laws as they would in a traditional public school.
While charter schools that receive federal funding must still comply with civil rights and other protective statutes – such as the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act, and No Child Left Behind Act – the lack of oversight by a public board of education means that it is up to students and parents to independently enforce the laws through expensive litigation.  In Los Angeles, charter schools have come under heavy criticism (outside source) for turning away students with disabilities.  This is comparable to concerns raised by communities across the country.  According to a study by the UCLA Civil Rights Project (outside source), that expressed alarm with the role of charter schools in creating a higher level of segregation amongst students that are African American, “charter schools, in many ways, have more extensive segregation than other public schools…[c]harter schools attract a higher percentage of black students than traditional public schools, in part because they tend to be located in urban areas…[a]s a result, charter school enrollment patterns display high levels of minority segregation, trends that are particularly severe for black students.” In fact, up until very recently, the Office for Civil Rights of the Department of Education (OCR) (outside source) did not collect data on civil rights outcomes for students in charter schools.  OCR will release for the first time, data related to charter school for 2011-2012 school year in the fall of 2013.
The school from which Scott B. was “dismissed,” Orange County School of the Arts (OCSA) (outside source), is a unique and elite charter school – and selective, it appears, from the data. OCSA receives up to $5 million a year in corporate and private donations.  OCSA also receives tax payer money to support its students. OCSA is ranked as one of the top 10 schools in California, and touts an academic program that aims to produce high achieving and motivated scholars.  Therefore, a dismissal from OCSA is likely a tremendous loss of opportunity for Scott B.  OCSA is also racially and economically exclusive.  Half of the students enrolled at OCSA are white, whereas white students comprise only 2.8% of students enrolled in the Santa Ana School District, where the charter school is located.  Similarly, 6.4% of OCSA students are eligible for free and reduced meals, compared to 75.7% of students enrolled in the District.[7]
The decision of Scott B. is characteristically lacking in the public policy considerations raised here, but this is not atypical of court decisions.  The decision will impact communities on the ground, however, in a manner not addressed by the court.  It will facilitate the ability of charter schools to deny the benefits of a publicly supported education to students, creating a further unequal education system.  The promises made by the pro-charter groups that charter schools are open to all students are belied by studies, anecdotal evidence, and now, the California Court of Appeal. The structures that allow charter schools to exist is marked by the absence of protections that are traditionally guaranteed by public schools, protections that only become apparent when families and students begin to face a denial of what they initially perceived to be their right.  Children who are disadvantaged by a disability, poverty, or in a minority group may not have the same “access” to charter schools as those without.
– See more at: http://www.bonniezyates.com/blogs/articles/court-rules-charter-schools-can-dismiss-student-without-due/#_ftn2