Legal review: Some New Mexico charter school admission policies may be discriminatory

Posted on • Reading Time: 8 min read

This article was published on the Santa Fe New Mexican on August 21, 2021.

A private law firm’s partial review of charter school admissions practices found some state-funded institutions in New Mexico are violating state rules by requesting information about prospective students’ special-education needs.

Leaders of a few charter schools cited in the report were surprised to learn about the violations and quickly altered their applications for lottery-based enrollment to remove questions deemed discriminatory. The error was an oversight and not intended to discourage students from applying, they said.

Other administrators defended their practices, however, arguing their schools provide a rigorous curriculum that may not be appropriate for some students with special needs.

Kathy Sandoval-Snider, director of the Albuquerque Institute for Math and Sciences at the University of New Mexico, one of the state’s highest-performing schools, said students who are accepted sign a contract acknowledging they understand AIMS-UNM is “no walk in the park.”

The charter application review by Pegasus Legal Services, which urged the state Public Education Department to investigate enrollment forms of the nearly 100 charter schools across New Mexico, has raised questions about how closely the schools are being monitored and whether privately run institutions designed for students with specific abilities and interests should receive public funding.

In a letter to Pegasus on Wednesday, outgoing Public Education Secretary Ryan Stewart said the Public Education Commission would discuss oversight of charter school lottery enrollment practices at an upcoming meeting. The commission is tasked with approving charters and overseeing state-chartered schools. Other charter schools are overseen by public school districts.

News that some schools have been asking for information on disabilities before accepting students came as a shock to Public Education Commissioner Steven Carrillo of Santa Fe.

“Quite frankly, I would be troubled if I learned of any school augmenting the lottery process to weed out more challenging kids,” Carrillo said. “That is not why we have charters.”

Corina Chavez, who also plays a role in charter school oversight through the Public Education Department’s Options for Parents and Families Bureau, said her agency would be “looking into” any possible violations in lottery enrollment practices.

Lottery enrollment applications at charter schools in Santa Fe appear to ask for minimal information about students, in line with state policy.

Data shows 12 percent of the state’s charter students were receiving special education during the 2015 school year, compared to a national average of 14 percent for all public schools.

Discouraged from enrolling

Research has shown students who require special-education services often are discouraged from enrolling in charter schools.

In 2018, Columbia University conducted a study on the issue. Researchers posing as parents sent out more than 6,000 emails to schools in 29 states, including New Mexico. They found schools were significantly less likely to respond to emails signaling the student had a disability.

Lily Hofstra, an attorney with Pegasus Legal Services, said the problem of charter schools in New Mexico asking for disability information on lottery applications is not new.

“We’ve talked to so many families over time who have been discouraged from having their kids with disabilities apply for charter schools,” she said.

Under state rules, charter schools must accept all applicants until they reach capacity. When there are more applicants than available seats, the schools use a lottery to select students — though preference is given to siblings of current students and, as of this year, children of employees.

To prevent bias in admissions, the state says charters must ask for minimal information on applicants until they are accepted as students.

Neither state nor federal law specifies when or how charter school lotteries should be conducted.

But, as Pegasus notes in a letter to the Public Education Department, the federal Americans with Disabilities Act and the Rehabilitation Act both state that no entity receiving federal funds can discriminate against people with disabilities. That includes money from the Individuals with Disabilities Education Act, which requires public schools to accommodate children with any of 13 federally protected disabilities.

New Mexico law adds a 14th group of students eligible for special-education funds: those who are considered “gifted.”

In 1984, the state was the last to join IDEA following nearly a decade of resistance from rural school officials who were concerned about the increased costs and staffing required to provide the services.

Three decades later, a judge’s ruling in the landmark education lawsuit Yazzie/Martinez v. State of New Mexico found kids with disabilities to be one of the groups denied their constitutional right to a sufficient education.

‘A school of choice’

Administrators at three schools identified in Pegasus’ review said they had not intended to show bias in their enrollment forms and were not aware the forms violated state rules.

No one from the state Public Education Department or Public Education Commission had told them.

Those three schools — Cesar Chavez Community School and North Valley Academy in Albuquerque, and Las Montañas Charter High School in Las Cruces — have since pulled the applications or changed their online forms.

Cesar Chavez Director and Principal Tani Arness and Las Montañas Executive Director Caz Martinez said at least a quarter of their students require special-education accommodations — estimates supported by data from the National Center for Education Statistics.

Abby Lewis, legal counsel for North Valley Academy, wrote in an email the prohibited questions on a preschool enrollment form may have been due to a ransomware attack.

Sandoval-Snider at AIMS-UNM defended her school’s enrollment forms. The lottery application is simple, she said, but is attached to a larger packet that requests information on special-education services and a contract stating the student applicant is expected to have the “intellectual ability” to attend the school.

“AIMS@UNM is a school of choice and is not appropriate for every student,” reads the contract’s preface.

The separate applications were tied together because many parents, “desperate” to enroll their kids at AIMS-UNM, have filled out the enrollment forms without first applying to the lottery, Sandoval-Snider said.

“But the only thing we accept for the lottery is the application,” she added.

At AIMS-UNM, students can earn 30 college credit hours or more while working toward their diploma.

If she were a parent of a child who had no chance of earning 30 college credit hours, Sandoval-Snider said, “why would I insist on putting that kid there?”

The National Center for Education Statistics shows the school had just five special-education students in 2019-20; Sandoval-Snider said the number was over 100 of the more than 350 enrolled, including gifted students.

It was unclear if the national data was incorrect. Sandoval-Snider said she never sees those federal numbers.

“It’s a school of choice, and it seems in the best interest of standard schools to take that away from parents,” she said. “Choice is good. It makes you competitive.”

State Rep. Alonzo Baldonado, a Los Lunas Republican, agrees with that perspective.

He said he could see how some people might perceive the AIMS-UNM contract as discouraging to students, “but I could also see that as a motivator.”

He said he knows at least one student with special-education accommodations who flourished at a charter school.

Baldonado said he has been dismayed to see little improvement in the state’s education system in his 11 years in the Legislature. More control for parents over where their kids attend school could help move the needle on outcomes, he said, adding there needs to be some flexibility in how the state asks schools to care for kids with special-education needs.

Baldonado, along with GOP gubernatorial candidate Rebecca Dow, a state representative from Truth or Consequences, introduced a memorial during this year’s regular legislative session asking the Legislative Education Study Committee to consider the feasibility of distributing public school funding “to parents for home school or private school, or for public school distance education, and to study the benefits of school choice.”

Dow could not be reached for comment.

State Rep. Christine Trujillo, D-Albuquerque, was part of the state’s education department when New Mexico first passed its charter school law in 1993. She said there were concerns from the beginning about “segregating” students based on demonstrated intellect.

“I don’t have an issue if they are creating equal access,” she said of charters that offer more a rigorous curriculum. “I think one of the things that happens is that when charter schools’ entrance requirements require a certain level of skill, I feel you’re starting to separate the cream from the milk.”

Sandoval-Snider acknowledged AIMS-UNM has come under scrutiny. Since 2020, Pegasus Legal Services has filed two complaints against the school on behalf of special-education students. One complaint resulted in six citations for AIMS-UNM from the Public Education Department. The state determined the school had failed to provide accommodations for a 14-year-old student with autism during the pandemic and failed to annually review the student’s Individualized Education Program, a document outlining services for each special-education student.

The school was placed on a corrective action plan.

The state also placed Albuquerque Public Schools, which oversees some charters, on a corrective plan this month for delays in evaluating students with special needs.

Public Education Department officials determined at a hearing in May a gifted student with attention deficit hyperactivity and obsessive compulsive disorders also was denied his federal right to a “fair and appropriate education” at AIMS-UNM after a nearly yearlong delay in evaluating him for special needs.

Monica Muira, an advocate at an organization that provides services to families of children with mental health issues or brain injuries called FamiliesASAP, said she usually advises her clients to avoid charter schools — and bad experiences.

For Muira, there’s a familiar story: A child starts exhibiting disruptive behavior, and their school delays a behavior assessment; instead, school officials warn parents if the child gets in trouble again, they may get kicked out.

She said she’s seen schools encourage parents to withdraw students before they get suspended.

Recently, Muira said, she helped a client with a brain injury graduate from a charter prep school with success.

The key? A speech and language specialist to help her stay organized.

In many cases, Muira said, if rigorous schools provide the right services, students with disabilities can succeed.

Efforts to comply in Santa Fe

Some charter school leaders in Santa Fe spoke about their efforts to serve special-education students.

New Mexico School for the Arts in Santa Fe, created through state legislation, is the only charter school in New Mexico that isn’t required to use a random lottery enrollment system. Instead, the school selects students through auditions and portfolio submissions.

But the top administrator said students with disabilities are not shut out.

NMSA President Cindy Montoya said the school provides accommodations to students with special needs, even during the audition process.

Data shows 11 percent of NMSA students had Individualized Education Programs in 2019.

Zoë Nelsen, the new head learner at Santa Fe’s Monte del Sol Charter School, said it tries to cast a wide net when it comes to getting the word out to prospective students before the lottery application season.

Roughly 15 percent of the students at Monte del Sol are in the school’s special-education program, according to Nelsen. Like many other charters, the school uses a special-education coordinator to help monitor those students’ IEPs and keep them up to date — which is key to keeping students with disabilities in class, according to Muira.

Monte del Sol also has a case manager for students to help keep multiple sets of eyes on the plans.

Nelsen said the school utilizes a “full inclusion model” to keep students with special-education needs in regular classrooms — in line with federal requirements that say students with accommodations should be placed in the “least restrictive environments,” with other students as much as possible and not isolated in separate rooms.

“That’s sort of how we’ve found that it works best to make sure we’re in compliance, as well as not just focusing on paperwork. We’re then serving the students with the case manager,” she added.

A 2019 Stanford study of New Mexico’s charter schools found special-education students enrolled in charter schools do slightly better overall than special-education students attending traditional public schools — although, the study notes, the outcomes differ from school to school and are difficult to measure. Statewide, special-education students registered the lowest graduation rate of all subgroups in 2020 at just over 64 percent.

While the quality of service and adherence to state and federal requirements for special education may vary for each school, Muira has one question.

“If a child is failing and they have an IEP — is that the child failing?” she asked. “Or is that the IEP failing and the school not bothering to figure [it] out?”