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Mark W. Sherman
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Editor’s note: This article originally appeared in Special Ed Connection.

Charter school operators treasure their autonomy from the regular public school system. Thus, one might suppose that charter school officials in Ohio were glad that the state board of education's new policy on restraint and seclusion does not apply to them.

The policy was adopted January 15 by a vote of 12-4. An accompanying rule is now being reviewed by a legislative committee.

In fact, charter schools didn't ask to be exempted and were surprised the board left them out, according to Stephanie Klupinski, vice president for legislative and legal affairs at the Ohio Alliance for Public Charter Schools.

"It's not entirely clear to me why charters were not included in the policy," she said. "It could be just an oversight."

Charter schools weren't looking for an out, agreed Terry Ryan, vice president for Ohio programs and policy at the Thomas B. Fordham Institute.

The institute is a supporter of the charter schools movement and a sponsor, i.e., authorizer, of several Ohio charters.

Adopting limits on the use of restraint and seclusion by districts "was the proper and appropriate move for the state board to make," Ryan said, and "as a matter of principle, it should extend to the charter schools."

Any such extension should take into account the particular needs of the charter school community, Ryan said.

For example, it is not clear how such a policy would work at a charter school that serves children at a juvenile justice facility, he said. Such a facility may have to "use some sort of corrective action that could fall under these rules," he said.

But in general, there should be a rule on restraint and seclusion for charter schools, he said. In fact, he said, it may be helpful as a way of reducing uncertainty.

"I have to believe there are liability issues if you have district schools that are under these rules and there are charter schools that are not under these rules," he said. "I've got to think that charter schools, as they think about this, would also see it as in their self-interest to also be under the same rule."

Being explicit

Board President Debe Terhar said she has referred the charter schools issue to the board's Legislative and Budget Committee.

The committee can then solicit input from charter schools to learn whether they use restraint and seclusion, and to see what effect the policy would have on them, she said.

"Does it really make sense for it to apply to them? I don't know the answer to that, right now," she said. "As you're well aware, they're a different animal, and they have different parameters that they work within."

If the board decides the policy should apply to charter schools, however, it will face a procedural question, because charter schools are independent.

Some observers say the board can act unilaterally by tying the policy to one or more of those provisions of state law with which charters must already comply.

For example, the rule could be considered an expansion of parental rights, according to Jennifer Martinez Atzberger, senior staff attorney at the ACLU of Ohio.

Atzberger cited Section 3314.04 of Ohio law, which says charters schools are "exempt from all state laws and rules pertaining to schools, school districts, and boards of education, except those laws and rules that grant certain rights to parents."

But if that line of argument doesn't prevail, a new law may be needed, she said.

The exemption of charter schools "is troubling to people ... [and] it seemed to me that many of the board members were troubled by it as well," she said. "So I'm hopeful that they will continue to push for clarification and, if necessary, a legislative remedy to it."

Whatever the method, any application of the policy to charters schools should be explicit, according to Klupinski, of the statewide charter schools group.

For example, she said, it would be disingenuous to tie the policy to school safety plans, a section of law with which charters already must comply.

In short, if the board wants the policy to apply to charter schools, it should say so, she said.

"I don't know why they couldn't," she said of the board members. Thus, "if charters are going to fall under this policy, I would just rather it be clearly stated somewhere, rather than it be loosely tied into a safety argument."

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