November 6, 2017 – In a recent decision, the U.S. District Court for the Western District of Wisconsin upheld the validity of Wisconsin’s Open Enrollment Law, Wis. Stat. § 118.51, which permits a school district to consider whether special education or related services are available, or whether there is “space available” for such service, in determining whether to accept or reject a nonresident pupil’s open enrollment application.

In S.W. v. Evers, (W.D. Wis. 10/03/17), several parents of different children with disabilities sought to enroll their children in various nonresident school districts in the State of Wisconsin. After their applications were rejected, the parents collectively filed a lawsuit against the respective school districts, as well as the State Superintendent and Department of Public Instruction, claiming that Wisconsin’s Open Enrollment Law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Equal Protection Clause. The parents based their claim on the fact that the statute allows districts to consider the availability of specific services or space needs when accepting or rejecting enrollment applications.

In rejecting the plaintiffs ADA and Section 504 claims, the court found that the consideration of each applicant’s individual needs serves a legitimate, non-discriminatory purpose. The court noted a distinction between making enrollment decisions based exclusively on whether an applicant has an IEP versus individually assessing an applicant’s IEP to determine if the district has the requisite resources to accommodate the IEP.

With regard to the Equal Protection claim, the defendant districts argued that the open enrollment law is rationally related to a legitimate government interest. The court agreed, finding that “allowing school districts to consider space and resource needs unique to a disabled child in determining whether to accept non-resident applications is rationally related to a legitimate government interest, namely the efficient management of the state’s school districts.”

In light of this ruling, before rejecting a nonresident pupils’ open enrollment application based on the availability of special education or related services, a Wisconsin school district should be careful to first conduct an individualized assessment of the applicant child’s needs and the district’s ability to meet those needs. Districts might consider class size limits, pupil-teacher ratios, and/or enrollment projections. If the district concludes that it does not have the space or resources to meet the applicant’s needs, the district may lawfully deny the application.

It is possible that the plaintiffs in S.W. v. Evers will appeal the district court’s decision, and we will keep you updated on any new developments. In the meantime, if you have any questions or concerns, please contact Mary Hubacher at mhubacher@buelowvetter.com or 262-364-0254, or your Buelow Vetter Attorney.