Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA

32 Journal of the National Association of Administrative Law Judiciary 516 (2012)

Loyola University New Orleans College of Law Research Paper No. 2013-04

29 Pages Posted: 2 Jun 2012 Last revised: 19 Feb 2013

Robert A. Garda

Loyola University of New Orleans College of Law

Date Written: June 1, 2012

Abstract

Charter schools are heavily criticized for turning away disabled students because they do not have the proper special education programs to serve them. But traditional schools also engage in this conduct, often preventing disabled students from attending their neighborhood schools or even schools within the district. This article discusses when a charter school or traditional school is permitted under federal disability law to deny admission to a disabled student because it does not have appropriate special education programs. After nearly four decades of special education jurisprudence and and regulatory guidance, the circumstances under which a student with a disability may be denied admission to a particular school are still remarkably unclear. This Article first discusses the "zero-reject" principle underlying the Individuals With Disabilities in Education Act and concludes that it does not grant a right of access to a particular school. The Article next explains the complicated interplay between Section 504 of the Rehabilitation Act and the Americans with Disabilities Act and argues that combined they compel particular schools to create special education programs to serve disabled students unless it is unduly burdensome or fundamentally alters the nature of the school. The Article concludes by surveying the regulatory guidance and caselaw regarding what constitutes a fundamental alteration and an undue burden that may justify denying admission to disabled students.

Keywords: charter schools, disability, disabled, Section 504, Rehabilitation Act, ADA, Americans with Disabilities Act, IDEA, Individuals with Disabilities in Education Act

JEL Classification: K19, H62, I28

Suggested Citation

Garda, Robert A., Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA (June 1, 2012). 32 Journal of the National Association of Administrative Law Judiciary 516 (2012); Loyola University New Orleans College of Law Research Paper No. 2013-04. Available at SSRN: https://ssrn.com/abstract=2072498 or http://dx.doi.org/10.2139/ssrn.2072498

Robert A. Garda (Contact Author)

Loyola University of New Orleans College of Law ( email )

7214 St. Charles Ave.
Campus Box 901
New Orleans, LA 70118
United States

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