On Friday, March 26, 2021, Governor Evers signed Senate Bill 109, now 2021 Wisconsin Act 18, related to open enrollment. This Legal Update will discuss how open enrollment for the 2021-2022 school year is affected by the Governor’s actions.

As a result of the COVID-19 pandemic, many schools have been offering a virtual learning option during the 2020-2021 school year to serve students who are unable to attend in-person instruction. The current law was interpreted by the Department of Public Instruction to permit school districts to provide a completely virtual option for resident students but restricted districts from accepting non-resident students through open enrollment into the fully virtual option unless they operate a virtual charter school. Typically, open enrolled students are required by the DPI to be physically present in the nonresident school district during the days that school is in session, unless the student is enrolled in a virtual charter school. The requirement for open enrolled students to be “physically present” would therefore normally prohibit students from being open enrolled in a nonresident district and attending a fully virtual learning program. An exception to that requirement was made for the 2020-2021 school year by the DPI in response to the COVID19 pandemic. The exception is again being made for the 2021-2022 school year by the legislature under 2021 Wisconsin Act 18.

Wisconsin Act 18 permits open enrolled students in a nonresident school district to attend a fully virtual option during the 2021-2022 school year. The passage of this law therefore permits school districts to offer a fully virtual option to both its resident and open enrolled students during the 2021-2022 school year without having to establish a virtual charter school. Because Act 18 specifically limits this exception to the 2021-2022 school year, unless the legislature takes additional action or the DPI changes its interpretation of the current law, school districts should be prepared to return their open enrolled students to in-person instruction after the 2021- 2022 school year, or should consider establishing a virtual charter school if they intend to implement a virtual program for all students.

If you have any questions about this Legal Update, please contact Attorney Mary Gerbig at 920- 362-5064 or mgerbig@buelowvetter.com, Attorney Alana M. Leffler at 262-364-0267 or aleffler@buelowvetter.com, or Attorney Emily Turzinski at 262-364-0268 eturzinski@buelowvetter.com, or your Buelow Vetter attorney.