Legal Updates


December 3, 2018

If the school board intends to limit the number of open enrollment spaces available in the schools, programs, classes or grades in the school district for the 2019-2020 school year, Wis. Stat. § 118.51(5)(a)1., requires that the school board take action during a board meeting in January 2019 to do so.  The school board has the option of establishing space limitations for regular education students, for special education students, or for both.

Before establishing such space limitations, the board policy must explicitly permit the school board to deny an open enrollment application on the basis of space availability.  Thus, as a first step, it is important to review the school district’s open enrollment policy to confirm that the policy language allows for the school board to accept and reject open enrollment applications based on space availability.  Additionally, the policy must identify the criteria that the school board will use to determine whether space is available.  This policy should be referenced by the school board when making space determinations in January 2019.

For purposes of establishing regular education space limitations, the school board must designate the number of open enrollment spaces available in the school district based on grade level.  The school board should consider factors, such as: class sizes, student-teacher ratios, enrollment projections, tuition agreements with other school districts, and students currently attending school in the district and their siblings. 

For purposes of establishing space limitations for special education, the school board must designate the number of open enrollment spaces available based on the program or service.  The school board may not establish space limitations based on the students’ eligibility category labels, such as Autism, Specific Learning Disability, etc.

Because many special education service providers in the school district are responsible for students of different ages and abilities, it is advisable to determine space for those services based on caseload rather than class size or student-teacher ratios.  In recent years, the Department of Public Instruction (DPI) published a study on recommended caseloads for special education providers: 

The school district should identify all of the special education services and programs that are currently available in the District such as occupational therapy, physical therapy, speech and language, and self-contained special education classrooms.  It is important to identify all of the currently available special education programs and services in the school district so that the school board can set space limitations.  If the school board does not set a space limitation for a program or service, the school district may not deny a special education student’s open enrollment application based on a lack of space.

A school district is not required to set space limitations for alternative placements that are not provided by the school district, such as mental health day treatment or residential care centers.  According to DPI, out-of-district placements are not deemed “available” in a nonresident district through open enrollment.  Therefore, a nonresident district may deny open enrollment for a student who requires an out-of-district placement based on the fact that the program or service is not available in the school district.

Once the school district has identified the special education programs and services currently offered in the school district, the school board should review information regarding current and projected caseloads, class size, or student-teacher ratios for each program or service, as well as the school district’s current standards for acceptable caseloads, class sizes, and student-teacher ratios for the identified special education programs and services.

DPI will uphold a school district’s space limitations and subsequent denial of open enrollment, if the school board took action to establish such space limitations during its January meeting, if the school district followed the criteria consistently, and if the denial is not arbitrary or unreasonable.  In regard to such an appeal, DPI will review the school board’s space determinations and documentation supporting those determinations.  Thus, it is important that the school board document its regular and special education space determinations, including the factors and evidence considered, in the minutes of the January 2019 meeting.  Thereafter, it is important for the school district to document its analysis and decisions to accept and reject open enrollment applications based on space availability.  It is also important for the school district to ensure that the criteria are followed consistently and that denials are not arbitrary or unreasonable.

For questions regarding this article, please contact the author, Attorney Shana R. Lewis (email:; telephone: 844.626.0902), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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