A r c h i v e d   I n f o r m a t i o n

Applying Federal Civil Rights Laws
to Public Charter Schools

Endnotes

The information provided in this document discussed the application of federal civil rights laws to charter schools. As stated above, the document discusses the application of existing law, and does not set forth new law. These same civil rights laws apply to all public schools, including charter schools. The following endnotes provide citations and background information to the major points addressed in this document. Numbers correspond to the answers in this document. These endnotes are not meant to be an exhaustive list of existing regulations or case law, but a brief, helpful summary and restatement of relevant federal civil rights laws. If you have further questions, please contact the OCR office that serves your state. A list of OCR offices is attached.


Responsibilities for Civil Rights Compliance

1. The federal civil rights laws and the implementing regulations that OCR enforces include: 42 U.S.C. ? 2000d et seq., 34 C.F.R. Part 100 (1999) (Title VI); 29 U.S.C. ? 1681 et seq., 34 C.F.R. Part 106 (1999) (Title IX); 29 U.S.C. ? 794 et seq., 34 C.F.R. Part 104 (1999) (Section 504); 42 U.S.C. ? 12101 et seq., 28 C.F.R. part 35 (1999) (Title II); 42 U.S.C. ? 6101 et seq., 45 C.F.R. Part 90 (1999) (Age Discrimination Act). (All subsequent citations in this document from the Code of Federal Regulations (C.F.R) are also from the 1999 edition.)

2. There are other federal civil rights statutes that apply to public schools, which are not addressed in this publication. These include, but are not limited to:
  • Title IV of the Civil Rights Act of 1964, 42 U.S.C. ? 2000b et seq., which authorizes the Attorney General to institute civil actions alleging discrimination on the basis of race, color, sex, religion or national origin by public elementary and secondary schools and public institutions of higher learning.
  • Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e et seq., which prohibits employment practices that discriminate on the grounds of race, sex, religion, and national origin.
  • The Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. ? 1701 et seq., which prohibits specific discriminatory conduct, including segregating students on the basis of race, color or national origin, and discrimination against faculty and staff. The EEOA also requires school districts to take action to overcome students’ language barriers that impede equal participation in educational programs.

Recruitment and Admissions

3. For regulations that generally address nondiscrimination in recruitment, see: 34 C.F.R. ? 100.3(b); 34 C.F.R. ? 106.23; 34 C.F.R. ?106.36; 28 C.F.R. ? 35.130; 34 C.F.R. ? 104.4(b). For regulations which govern targeted recruitment, see: 34 C.F.R. ? 100.3(b) (6) (i) (ii); 34 C.F.R. ? 106.3 (a)-(b); 34 C.F.R. ? 104.6(a)-(b); 45 C.F.R. ? 90.49.

4. For documents supporting outreach to limited-English proficient parents, see: Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11595 (1970) (hereinafter OCR 1970 memorandum) (requires adequate notice to LEP parents of school activities); Policy Update on Schools’ Obligations Toward National Origin Minority Students with Limited-English Proficiency (9/27/91) (hereinafter OCR 1991 memorandum) at 8 (discussing notification to parents of LEP students in specialized programs). OCR’s policy on the requirements for LEP students are encompassed in three documents: the 2 documents listed above along with The Office for Civil Rights’ Title VI Language Minority Compliance Procedures (initially issued 12/3/85, reissued without change 4/6/90). These three documents should be read together and are available through your OCR office.

5. For regulations related to outreach for parents with disabilities, see: 28 C.F.R. ? 35.160; 28 C.F.R. ? 35.104 (1)-(2). See also 34 C.F.R. ? 104.4(b).

6. For regulations regarding non-discriminatory treatment in admissions, regardless of race, color and national origin, see: 34 C.F.R. ? 100.3(b) (1) (v); 34 C.F.R. ? 100.3(b) (2). Also read Guardian’s Association v. Civil Service Commission, 463 U.S. 582 (1983) (holding disparate impact standard as valid). Many courts use the term "equally effective" (see, for example, Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)) and "comparably effective" (see, for example, Elston v. Talladega County Bd. of Educ. , 997 F.2d 1394, 1407 (11th Cir. 1993)) when discussing whether alternative criteria serve the educational goals; the courts appear to use the terms synonymously. Also helpful is 34 C.F.R. 100, Appendix B, part K (Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex and Handicap in Vocational Education Programs). For admissions requirements concerning LEP students, see OCR 1991 memorandum at pages 8-9 (LEP students cannot be categorically excluded from specialized programs unless the particular program requires proficiency in English for meaningful participation).

7. The list of cases discussing the use of race is lengthy. For the general principles regarding the use of race, see, for example, Adarand Constructors, Inc. v. Pe?a, 515 U.S. 200 (1995) (holding that use of race must serve a compelling legal interest and be narrowly tailored to serve that interest). Elimination of discrimination is a compelling government interest that can justify race-conscious measures. See, for example, United States v. Fordice, 505 U.S. 717 (1992). The Supreme Court and other courts have recognized other compelling interests. See, for example, Regents of University of California v. Bakke, 438 U.S. 265, 311-14 (1978) (opinion of Powell, J.) (Promotion of educational benefits of diverse student body furthers a compelling state interest justifying use of race in university admissions). See, for example, Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1997), cert. denied, 117 S. Ct. 949 (1997) (finding a compelling interest in the use of use of race in maintaining the integrity of correctional facility’s boot camp program). But see, for example, Hopwood v. State of Texas, 78 F.3d 932, 944-948 (5th Cir.), cert. denied, 518 U.S. 1033 (1996) (University interest in attaining diverse student body does not constitute a compelling governmental interest to justify use of race in law student selection). Other courts have assumed for the sake of argument that diversity is a compelling legal interest, but struck down the use of race in admissions on the grounds that the specific policy challenged was not narrowly tailored to meet the diversity interest. See, for example, Wessmann v. Gittens, 160 F.3d 790, 795-799 (1st Cir. 1998).

Congress has also recognized that the elimination of racial isolation has significant benefits. See 20 U.S.C. ?? 7201-7213 (Magnet School Assistance Program). For additional helpful background information on this topic, see: Adarand Memorandum to General Counsels from Assistant Attorney General Walter Dellinger (6/28/95); 34 C.F.R. ? 100.3(b) (6) (i) and (ii); 59 Fed. Reg. 8756 (02/23/1994) (Title VI and applicability to financial aid ); Bakke Notice, 44 Fed. Reg. 58509 (10/10/79).

8. The regulations related to admissions of students with disabilities include: 34 C.F.R. ? 104.4(a)-(b); 28 C.F.R. ? 35.130(a); 28 C.F.R. ? 35.104 (1)-(2).

9. The regulations that address single-sex courses, activities, programs and schools are: 34 C.F.R. ? 106.34 (single-sex courses); 34 C.F.R. ? 106.35 (single-sex schools); 34 C.F.R. ? 106.3(a)-(b) (single-sex activities/programs). The Supreme Court has also addressed the legality of single-sex institutions. See, for example, United States v. Virginia, 518 U.S. 515, 531 (1996) (parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification").

Schools Affected by Desegregation Plans or Court Orders

10. For a discussion of de jure segregation in public schools, see generally, for example, Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971); Green v. County School Board of New Kent County, 391 U.S. 430 (1968); Brown v. Board of Education, 347 U.S. 483 (1954). See also: 34 C.F.R. ? 100.4 (c) (2) (OCR plans); 34 C.F.R. ? 100.4(c) (1) (court orders). To examine more recent Supreme Court school desegregation cases, in particular unitary status, see, for example, Jenkins v. Missouri, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991).

If a charter school is its own LEA, it still could affect a desegregation plan or court order. Two Supreme Court cases which provide support are: Wright v. Council of Emporia, 407 U.S. 451, 460-462 (1972) (Even if there is no discriminatory intent, a new school district could not be created if its effect would be to impede progress of dismantling the existing dual system); United States v. Scotland Neck City Bd. of Ed., 407 U.S. 484 (1972) (Whether action affecting dismantling of dual school system is by legislature or school district is immaterial, criterion is whether the dismantling of dual system is furthered or hindered).

11. For cases dealing specifically with charter schools and school desegregation, see, for example, Berry v. School District of the City of Benton Harbor, 56 F.Supp.2d 866, 872 (W.D. Mich 1999) (holding charter school has same burdens as other public schools in district subject to court’s remedial order); Beaufort County Board of Education v. Lighthouse Charter School et. al., 516 S.E.2d 655, 659 (S.C. 1999) (holding valid a school board finding that charter school applicant failed to adhere to same remedial requirements as other public schools in the district under OCR Title VI desegregation plan); Davis v. East Baton Rouge Parish School Board, et al, C.A. No. 56-1662 (M.D. La. 1999) (stating that charter schools in district remain subject to court’s orders relating to desegregation of district). Courts are guided by the general principle established in Wright and Scotland Neck, both discussed in note 10.

12. As stated before, it is the effect of the action, not the intent, that determines whether new schools comply with school desegregation decrees. See: Wright and Scotland Neck, both discussed in note 10. For more discussion on how charter schools can meet school desegregation requirements, see, for example, Benton Harbor, discussed in note 11 (court approved a charter school since it provided sufficient information; ordered it to undertake recruitment steps that would guarantee a population to approximate racial characteristics of district). Generally, see also: 34 C.F.R. ? 100.3(b) (2); 34 C.F.R. ? 100.3(b) (3).

13. See the endnote discussing the answer to question 12.

14. See the endnotes discussing the answers to questions 10-12.

15. See the endnote discussing the answer to question 12.

Selection of Facilities to Provide Access to Students with Disabilities

16. For requirements involving physical accessibility to schools, see: 34 C.F.R. ? 104.21; 28 C.F.R. ? 35.149.

17. For regulations involving existing facilities as opposed to new facilities, see: 34 C.F.R. ?? 104.22-23; 28 C.F.R. ?? 35.150-151. For additional background information, see: Uniform Federal Accessibility Standards; Americans with Disabilities Act Accessibility Guidelines; American National Standards Institute A117.1-1961 (R1971).

18. The regulations that distinguish new facilities from existing ones are: 34 C.F.R. ? 104.23 (c); 28 C.F.R. ? 35.151.

19. To assist you in choosing the space where you operate your charter school, you should read: 34 C.F.R. ?? 104.21-23; 28 C.F.R. ?? 35.149-151.

Educating Students Who Are Limited-English Proficient

20. The legal support for taking affirmative steps in educating LEP students are: Lau v. Nichols, 414 U.S. 563 (1974); 34 C.F.R. ? 100.3(b) (2); OCR 1970 memorandum (35 Fed. Reg. 11595, 07/18/70) (cited with approval in Lau). For the legal standard regarding the instructional program for LEP students, see: Casteneda v. Pickard, 648 F.2d 989, 1009-1010 (5th Cir. 1981) (decided under EEOA framework and applied in OCR Title VI analysis, OCR 1991 Memorandum at 12-15).

21. The relevant statute is the Improving America’s Schools Act of 1994, P.L. 103-382 (10/20/94), 108 Stat. 3518. 20 U.S.C. ? 6301-6514 (Title I); 20 U.S.C. ? 7401-7602. (Title VII).

22. The OCR 1970 memorandum, set out more fully in note 4, specifically addresses this issue. See also 34 C.F.R. ? 100.3(b) (2).

Educating Students with Disabilities

23. For regulations dealing with the civil rights requirements of providing a free appropriate public education, read: 34 C.F.R. ? 104.33; 28 C.F.R. ? 35.130(b) (1) (iv).

24. The regulations of the IDEA are at: 34 C.F.R. Part 300. If a school satisfies the FAPE requirement under IDEA, it is in compliance with FAPE under 504 and Title II. See: 34 C.F.R. ? 300.13; 34 C.F.R. ? 104.33(b) (2).

25. The regulation discussing the flexibility of IDEA is 34 C.F.R. ? 300.312.

26. For discussion of how a student could be protected under Section 504 and Title II, but not be eligible for IDEA services, see in general: 34 C.F.R. ? 104.3(k) (2); 34 C.F.R. ? 300.7. The definition of a person with a disability can be found at 34 C.F.R. ? 104.3(j); 28 C.F.R. ? 35.104.

27. For discussion of participation of students with disabilities in nonacademic services, see: 34 C.F.R. ? 104.37; 34 C.F.R. ? 104.34(b).

28. The regulations addressing the educational placement of students with disabilities are: 34 C.F.R. ? 104.4(b) (2); 34 C.F.R. ? 104.34(a).

29. The regulation that addresses when a student is believed to have a disability is 34 C.F.R. ? 104.35(a).

30. Other rights and responsibilities included in the provision of FAPE are discussed at 34 C.F.R. ? 104.36.

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