CHICAGO (CN) – A Seventh Circuit panel was highly skeptical Friday of disability advocates’ claims that Wisconsin’s open-enrollment law discriminates against children with disabilities by limiting their transfer options based on a school’s capacity to serve their special needs.
The state’s open-enrollment law allows students who are unhappy with the schools in their district to apply to a school in another district, which must accept them if that school has excess capacity.
But due to the extra services they require, applications made by students with learning disabilities are considered separately from those of students without disabilities.
For example, a school might have 50 regular education seats open for transferring students, but only two seats for special-needs children available.
Four disabled students sued Wisconsin over the policy in 2014, but a federal judge ruled that the open-enrollment program does not violate the Americans with Disabilities Act.
On appeal, plaintiffs’ counsel Brian McGrath with the Wisconsin Institute for Law and Liberty told the Seventh Circuit on Friday morning that “the problem with the open-enrollment law is that it treats students with disabilities differently.”
He argued the law affects all disabled students regardless of the nature of their disability.
For example, a student that needs speech therapy, but can otherwise sit in a regular classroom, would be categorized as a disabled student with very limited chances for being accepted to another district’s schools, McGrath said.
But U.S. Circuit Judge Diane Sykes immediately expressed her support for the state’s position, and showed impatience with the plaintiffs’ argument throughout the hearing.
“We don’t even have a case of discrimination going on here,” Judge Sykes said.
If there were no open seats for a child in the fourth grade in a new district, no one would say that child was discriminated against, the judge told McGrath.
“You’re asking for a regular education seat for a special education student. That is not what federal law mandates,” Sykes said.
U.S. Circuit Judge Amy Coney Barrett posed a number of questions to counsel for the Wisconsin Department of Public Instruction, Anthony Russomanno, seeking to clarify the state’s process for evaluating student applications.
Russomanno assured the judge that the receiving districts consider each student’s individual educational needs, and it is more nuanced than simply setting a quota of seats for special needs children.
“So a school could reject a student, not because, ‘We don’t want you,’ … but, ‘We just don’t have the resources,’” Judge Barrett said.
The attorney agreed with this statement and noted that students in wheelchairs or with minor vision problems are not considered as special-needs students under the open-enrollment program, only those with cognitive difficulties.
Russommanno said that 64 percent of special-needs students are able to transfer schools, which is only 7 percent less than regular education students.
On rebuttal, McGrath again pushed his argument that school districts do not make Wisconsin’s open-enrollment program available to disabled students the same way that it does to non-disabled students.
But Judge Sykes interrupted him.
“Sure they do,” she said. “They make it available based on existing capacity.”
U.S. District Judge Thomas Durkin, sitting by designation from the Northern District of Illinois, rounded out the three-judge panel.
The court is expected to issue a ruling in this matter within three months.