WI School-Transfer Program Excludes Disabled, Kids Say

MADISON (CN) - A provision of Wisconsin's open-enrollment law that lets school districts set quotas on how many children with disabilities they accept is discriminatory, a federal action alleges.

Four children with disabilities, identified only by their initials in the complaint filed Tuesday, say they have been left in the dust when it comes to the "excellent program" offered by Wisconsin's open enrollment law, which frees students from having to attend school in the school district where they reside.

"In the 2013-2014 school year, over 1,000 disabled children had their applications for open enrollment rejected solely on the basis of their disability," the 17-page complaint states.

The children behind the lawsuit note that the discrimination stems from a provision of the law, Section 118.51(5), governing how "a nonresident school district" may reject open-enrollment applications.

"It allows nonresident school districts to determine the number of students with disabilities that it will accept, including the option to accept none, even if it is accepting students without disabilities," the complaint states. "As a result, every year school districts in Wisconsin set quotas for students with disabilities under the Open Enrollment Law."

A Legislative Fiscal Bureau analysis of the open-enrollment law shows that the district where a child resides must pay tuition to a district that takes in a child who requires special education.

One of the plaintiffs, P.F., says he "has been rejected twelve times in the last five years, most recently by the Muskego-Norway School District."

"The Racine Unified School District blocked P.F.'s application to transfer to Muskego-Norway asserting that the transfer would result in an 'undue financial burden' on the Racine Unified District," the complaint states.

Out of 55 open-enrollment spaces that Mukego-Norway approved at a January 2014 board meeting, "zero" went to children with disabilities, the plaintiffs say.

S.W., another of the plaintiffs, says he wanted to get out of the Wauwatosa district after a school employee there "illegally physically restrained" him.

When the child's application in 2013 was rejected, S.W. enrolled in a private school and tried again the next year, according to the complaint. S.W. says three districts, one of which does not cap enrollment of nondisabled students, rejected his applications.

Noting that the Americans with Disabilities Act forbids discrimination in education against people with disabilities, the children say that the portion of the open-enrollment law that lets school districts reject students with disabilities is illegal.

The Department of Public Instruction emphasized that the complaint in question is "about current Wisconsin state law. "

"The recently submitted Department of Public Instruction biennial budget request provides lawmakers with a path to improve access to open enrollment for students with disabilities," it said in an email. "We will continue to encourage the governor to include this in his budget."

Richard Eisenberg, founder and president of the Wisconsin Institute for Law & Liberty, represents the children in the action.

The Wisconsin Department of Public Instruction is named as a defendant, as is its superintendent, Tony Evers; the Elkhorn Area School District; the Greendale School District; and the Muskego-Norway School District.

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