Conservative Group, Parents Ask Judge to Rule Open Enrollment Program Violates Federal Disability Law

Lawyers for the parents of six special needs students have asked a federal judge to declare that Wisconsin’s open enrollment program violates the federal Americans with Disabilities Act.

The lawsuit against four school district, State Superintendent Tony Evers, and the Department of Public Instruction (DPI) was filed in November 2014 by the Wisconsin Institute for Law & Liberty (WILL).

The suit alleges the four districts have refused to accept students with special needs who apply for a transfer under the state’s public school Open Enrollment program based solely on the fact that those students have a disability. It asks the federal court to strike down provisions of Wisconsin state law that it says enable public schools to discriminate against children with disabilities who seek to open enroll into public school districts other than the one in which they are residents.

A motion for summary judgment and an accompanying brief in support of granting a summary judgment filed by WILL attorneys this week asks federal judge William Conley to rule on the case now based solely on the pleadings. A trial in the case is set for April of next year.

According to WILL, the purpose of the lawsuit is to “fix” open enrollment so that more children can use public school choice.

The suit alleges some school districts cap the number of special needs children they will accept – often at zero – while accepting children without special needs.  This two-track system treats children with disabilities differently from children without disabilities and violates federal disability laws.

Wisconsin’s open enrollment program allows parents and children to choose their own public school by applying to transfer to a school district outside from where they live.  State law currently permits school districts to deny transfers of students with  disabilities based on space availability and “undue financial burden.”

Current provisions relating to  “undue financial burden” require the nonresident district calculate the cost of implementing the transferring child’s individualized education program (IEP) in the nonresident district and allow the resident district to object to the transfer on the basis that charging back those costs to the resident district will result in an “undue financial burden” to the resident district.

The recently enacted state budget removes these provisions from state law, but this change will not take effect until the 2016-17 school year.  The budget act also increases the open enrollment transfer amount for students with disabilities to $12,000 per student, effective in 2016-17.