Much can be learned about the thinking of the Office for Civil Rights by reading its report on the investigation of Harmony Public Schools.   Harmony is a very large charter school operator. According to the OCR report, the Harmony school system had 28,500 students as of October, 2014. That’s larger than all but a few colleges in Texas! Those students are served in 15 individual “districts” and 43 charter schools.

The OCR report is based on statistics from the 2011-12 school year, when Harmony served 20,239 students. Here is what caught the eye of OCR: in the specific Harmony schools that OCR looked at, only 11.5% of the students were identified as English Language Learners (ELL). The traditional districts located in the same geographical area had 22.5% ELLs. The Harmony schools served only 2.7% students with disabilities; this compared with 7.3% in the traditional public schools.

What’s going on here? The traditional public school is serving twice as many ELLs and more than twice as many special education students. Discrimination?

OCR concluded that “HPS’ admissions policies and procedures are nondiscriminatory on their face with respect to race/national origin, ELL status, and disability status. HPS selected students for admission to its charter schools through a random lottery. HPS did not request information regarding race/national origin, ELL status or disability status on the application form or during the admission or selection process.”

So far so good. But what about those numbers? OCR was concerned about that, noting that ELL and special education students were “underrepresented” to a “statistically significant” extent. Perhaps it was because of that concern that HPS entered into a voluntary resolution agreement, committing to some changes in their practices. We found this language from the OCR report interesting:

OCR is concerned, however, that the exclusion from admission and enrollment in HPS charter schools of students with a documented history of a criminal offense, juvenile court adjudication or discipline problems may improperly contribute to the lower enrollment of students with disabilities or ELL students in the HPS charter schools.

If OCR finds this troubling, they need to address the Texas Legislature, because what HPS is doing is specifically authorized by state law. Texas Education Code 12. 111(a)(5)(A) allows a charter to “provide for the exclusion of a student who has a documented history of a criminal offense, a juvenile court adjudication, or discipline problems under Subchapter A, Chapter 37.”

Traditional schools, of course, cannot do that. The OCR report is dated November 26, 2014; Docket No. 06-11-5004 from the Southern Division, Dallas Office of OCR. We found it at 114 LRP 50981.