Legal Updates


SPACE DETERMINATIONS FOR OPEN ENROLLMENT DECISIONS MUST BE MADE DURING THE JANUARY SCHOOL BOARD MEETING

January 5, 2018

In accordance with the Full-time Open Enrollment statute, Wis. Stat. § 118.51, if a school board intends to deny applications to open enroll into the school district based on space, the school board must determine the number of regular education and special education spaces available in the school district during a January meeting of the school board. While a school district is not required to designate regular education and special education spaces available within the school district for purposes of open enrollment, if the school board fails to take such action during a January meeting, the school district may not deny open enrollment applications on the basis of space during the upcoming school year.

Wis. Stat. § 118.51(4) requires a school board to adopt a policy that specifies the school district’s criteria for approving and denying open enrollment applications. The policy must address the school district’s acceptance and rejection criteria, reapplication requirements, preferences and guarantees for pupils and siblings of pupils already attending school in the district, and transportation options. However, unlike the other acceptance and rejection criteria, even if the policy provides for space limitations, the school district may not rely upon such limitations to deny an application unless the school board has taken action during a properly posted meeting in January to establish the regular education and special education spaces available within the school district for purposes of open enrollment.

Prior to the January board meeting, school district officials should review the board policy governing Full-time Open Enrollment in order to confirm that the board has identified space limitations as a reason for denying open enrollment applications in the district. If the space criterion is included in the policy, the school board may proceed to designate regular education and special education spaces available in the school district for purposes of open enrollment.

The number of regular education spaces for purposes of open enrollment is designated by grade. When making such decisions regarding the regular education spaces available in the school district for purposes of open enrollment, a school board will typically consider class size limits, pupil-teacher ratios, enrollment projections, and building/facility capacity.

The number of special education spaces for purposes of open enrollment is designated by program or services. Neither state nor federal law contain requirements for minimum or maximum space/staffing capacity to provide special education and/or related services. The local school board is responsible for determining the policies and criteria to be used regarding space/staff capacity to provide special education services for open enrollment purposes.

When making decisions regarding the special education spaces available in the school district for purposes of open enrollment, the school board may not utilize limits based on pupil eligibility category labels, IDEA environment codes, or transportation. Rather, school boards may establish limits based on:

• Class size limits or pupil-teacher ratios.
• Staffing capacity limit, including:

o The amount of services pupils may need (e.g., minutes/hours, days per week).
o Class/group size based on intensity of pupil needs (e.g., 1:1, small group, crisis intervention).
o The type of staff to address various disability-related needs (e.g., special education teacher, pupil services staff, related services, paraprofessional, etc.).

• Projected pupil enrollment and changes to services in pupils’ IEPs.
• Other considerations concerning availability of space in the special education or related services.

The criteria must be applied consistently to ensure that decisions about available special education spaces, for purposes of open enrollment, are not arbitrary or unreasonable.

The January meeting minutes should reflect the school board’s space determinations for regular education and special education in the school district for purposes of open enrollment, as well as the information considered by the school board to make the decisions. It is not sufficient for the school board to simply adopt the language in the policy or the criteria to be used to establish the space limitations.

For questions regarding this article, please contact the authors, Attorney Shana R. Lewis (email: slewis@strangpatteson.com; telephone: 844.626.0902) and Attorney Chad P. Wade (email: cwade@strangpatteson.com; telephone: 844.833.0826), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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