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Testimony before the New York City Council Education Committee on Charter School Management

Testimony of Johanna Miller and Ifetayo Belle on behalf of the New York Civil Liberties Union

May 6, 2014

The New York Civil Liberties Union respectfully submits the following testimony on Charter School Management and Accountability.


The NYCLU, the New York state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across New York state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. Securing students’ rights is a core component of our mission, and through our Youth and Students’ Rights program the NYCLU advocates for positive discipline systems that reduce classroom removals, suspensions, expulsions and school-based arrests.

In New York City, over 5% of the total enrollment of school age students, nearly 70,000 children, currently attends a charter school at over 180 schools throughout the five boroughs. Charter schools are billed as an innovative alternative to traditional public schools, which “provide parents and students with expanded choices in the types of educational opportunities that are available within the public school system.” As the network of charter options grows, it is more important than ever to ensure that children attending charters receive all the rights, protections, and benefits guaranteed to them under the New York State Constitution and New York education laws. Charter schools in New York have grown to the point that they are no longer an alternative laboratory but a serious educational provider on par with entire school districts. In fact, the charter school population in New York City, taken alone, would be the second-largest school district in New York State.

As the rise of the charter school movement continues, there has been a corresponding increase in student suspensions, classroom removals, and expulsions from charter schools. In fact, many advocates claim that charter schools are far more aggressive in suspending and expelling students than traditional public schools. Worse, charter school students facing exclusionary discipline are not guaranteed access to basic due process protections provided under state law because many of the schools claim they are exempt from the requirements of the law. While much of our information on these practices is anecdotal, the stories are a valuable lens for the Council in its oversight role.

In our experience, many charter schools practice an almost complete disregard of students’ due process rights in disciplinary matters. These rights are guaranteed to students under New York State law, and include the right to receive notice of the charges against you and a right to speak in your own defense. Removing a child from school, even temporarily, is a denial of their right to an education, guaranteed under the New York State constitution.

While charters are granted flexibility from many state law requirements, it is clear that they are not immune from laws that implicate health, assessments and, most importantly, civil rights. We submit to you today that state laws governing due process procedures for student discipline fall under the category of civil rights laws which charters must follow, in addition to those laws which protect against discrimination. Due process is, in some ways, the foundation of all constitutional guarantees—it is the promise that your rights cannot be limited or removed without adherence to protective procedures.

We have two specific recommendations for the New York City Council today:

  • First, the Council should use its oversight authority to ensure charter schools comply with the minimum due process protections in disciplinary matters afforded to every other public school student in New York State.
  • Second, the Council should amend the Student Safety Act to require charter schools to report data on student discipline in the same manner that DOE schools are required to report.


The NYCLU believes the denial of due process protections to charter school students is a violation of the state law governing student discipline for public school students, N.Y. Educ. L. § 3214. The importance of this law cannot be overstated – by providing minimum due process procedures to all public school students facing exclusion from the classroom, it keeps kids in schools and off the streets.

The statute, which applies to all public schools, states that students facing a short term suspension of up to five days are entitled to certain rights (e.g., notice of the suspension, informal conference with the principal, alternative instruction while suspended, and others) and those facing a long-term suspension of six days or more are provided with additional rights (including access to an impartial hearing with the opportunity to question and present witnesses).

Charter schools and their attorneys claim that they are exempt from these requirements, which apply to all public schools. We disagree. In 1998, the New York State Legislature adopted the Charter Schools Act to establish a set of laws to govern charter schools. The Charter Schools Act provides in relevant part:

A charter school shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in this article. A charter school shall be exempt from all other state and local laws, rules, regulations or policies governing public or private schools, boards of education and school districts, including those relating to school personnel and students, except as specifically provided in the school’s charter or in this article. Nothing in this subdivision shall affect the requirements of compulsory education of minors established by part one of article sixty-five of this chapter.

Part I of Article 65, referred to in italics above, is titled “Compulsory Education.” It governs the requirements for students to attend, and be removed from, school. It contains a litany of provisions relating to the basic educational standards all New York school children are afforded (such as prohibiting discrimination based on sex, preventing child abuse, educating homeless children, etc.). Importantly, it also includes the section of the law dealing with “Student Placement, Suspensions and Transfers,” N.Y. Educ. L. § 3214.

It would be inconsistent with the express legislative intent of the Charter Schools Act to allow charters to avoid following civil rights laws written to protect the due process interests of public school students. It is difficult to understand how charter school advocates believe they are exempt from the discipline law when it is clearly a statute meant to protect students’ civil rights. It is unlikely that the drafters of the law only wanted charter schools to comply with the narrow view of “compulsory education” (i.e., age requirements of students who must attend school) advocated by some charter school attorneys. Had that been the case, the legislature would have simply stated such and cited to, N.Y. Educ. L. § 3205, the express provision of the education law that requires students to attend school until they turn 16-years-old.

In fact, there is nothing in the Charter Schools Act that precludes adherence to minimal due process in student discipline. One of the explicit objectives of the system of charter schools is to provide additional access to learning opportunities for students who are at-risk of academic failure, that often overlap with students who experience a high degree of disciplinary issues. It can hardly be said that a system that is immune from the due process protections of N.Y. Educ. L. § 3214 furthers that objective.

By way of comparison, students attending DOE schools are entitled to a strict list of due process procedures when facing an exclusion from the classroom. The regulation that governs student discipline, Chancellor’s Regulation A-443, is a 69-page document with a thoughtfully constructed set of procedures that must occur before or very soon after a student is excluded. While state law clearly permits charter schools to adopt their own codes of discipline, there must be a basic set of standards applied to all students when it comes to limiting constitutionally-guaranteed rights. At the very least, the DOE, as the authorizer of 69 of the 183 charter schools in New York City, should ensure the schools under the Department’s authorization are providing students with the minimum due process protections found in N.Y. Educ. L. § 3214.

A textbook example of this occurred with a client who came to the NYCLU for assistance after her son was suspended from a charter school in New York City for ten days just six weeks into his freshman year at the high school. The student, a 15-year-old Black boy, was accused of being involved in an altercation with another student at the school (it was later discovered that no physical altercation ever occurred). Because the charter school’s attorney did not believe the school had an obligation to comply with N.Y. Educ. L. § 3214(3)(c)(1), typically invoked when there is a suspension for six days or more, the student’s mother never received a written notice of suspension and the student was never provided with alternative instruction during his suspension.

Instead, the mother received a phone call from the charter school that her son was prohibited from coming to school for ten days and was told that the school would attempt to provide some instruction during the suspension, which never happened. The mother was told there would be a suspension hearing, but because there was no written notice provided, she never knew the date or time when the hearing would be held. The school even attempted to hold a hearing in her absence after she expressed that she wanted to attend. Another hearing was scheduled for a later date, but the school insisted the student could not return to school even though his ten day suspension had already been served.

When the NYCLU got involved, the attorneys representing the student quickly recognized the student likely had an undiagnosed disability. The attorneys also discovered the mother had expressed concerns to school staff that her son was not like his peers and seemed to have particular difficulties in school. Yet the school took no action to have the student evaluated for special education services, in violation of the obligations for students suspected of having a disability as outlined in the Individuals with Disabilities Education Act (“IDEA”). While the NYCLU worked with the mother to expedite the evaluation for special education services (the student was later classified by the Committee on Special Education as Emotionally Disturbed), the suspension hearing moved forward as planned because the school maintained the student could not return until a disciplinary decision was reached. At the hearing, the school requested the hearing officer (an employee of the school’s charter operator) expel the student. The student had only been enrolled in the school for approximately ten weeks when the school requested expulsion. Further investigation by the NYCLU revealed that one-on-one counseling and programs guaranteed in the school’s code of conduct for discipline violations were never granted to this student.

The NYCLU recommends the City Council work in close collaboration with charter schools and authorizers, including the DOE, to discuss ways in which charter schools operating within the City can offer all students facing exclusion access to meaningful due process protections.


The NYCLU has been a leader in advocating for data transparency on the numbers of students in public schools who have been disciplined. As the number of charter schools throughout New York City continues to grow, we have become very concerned about the disproportionality of Black students and students with disabilities being removed from charter classrooms. Citywide, charter schools enrolled approximately 59% Black students and 13% student with disabilities. While there is no data demonstrating the exact number of exclusions of these vulnerable students from charter schools, whether through drop-out or push-out, news reports show that this is not a minor problem that we can afford to ignore. Among non-charter schools, the disproportionality is significant: Black students represent more than 50% of suspensions and just 32% of enrollment. Students with disabilities are four times more likely to be suspended than those without special needs.

The NYCLU recommends the City Council amend the Student Safety Act to require collection of data from charter schools in the same manner data is collected from DOE schools. Parents and policymakers deserve access to disaggregated, quantitative data on students facing exclusionary discipline in charter schools including how many suspensions are occurring at every school, the race/ethnicity, gender, age and grade of the students, whether the students have disabilities, whether the students are English Language Learners, and all of the other data points collected on traditional public school students through the Student Safety Act. In addition, we recommend the City Council continue to hold oversight hearings on charter school discipline issues, just as it does for DOE schools, in order to capture the equally important qualitative data that you cannot glean from the numbers alone.


In conclusion, while we recognize the City Council has somewhat limited authority to affirmatively act on the problems we have outlined, the NYCLU strongly urges the City Council to hold regular hearings on charter school accountability to shine light on the issues facing our city’s schools. Without this level of continued oversight, the charter schools in New York City are likely to continue operating under the status quo possibly violating both students’ rights and federal legal obligations.

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