Legal Updates


February 14, 2019

On January 22, 2019, the court held that Wisconsin’s open enrollment program did not violate federal law.  This January school boards throughout Wisconsin set space limitations in general and special education for the annual open enrollment application period.  Simultaneously, the Seventh Circuit Court of Appeals was considering whether setting space limitation for special education programs and services violated federal discrimination statutes.  P.F. by A.F. v. Taylor, 2019 WL 275923 (7th Cir. Jan. 22, 2019). 

The initial lawsuit, filed by a group of students and their parents, alleged that Wisconsin’s open enrollment statute violated the Americans with Disabilities Act (ADA), and Rehabilitation Act by discriminating against students with disabilities.  The students argued that the open enrollment statute unlawfully permits school districts to deny student open enrollment applications based on an applicant’s disability by imposing space criteria that only apply to students with disabilities.

The Seventh Circuit disagreed and upheld Wisconsin’s open enrollment statute.  The court noted that general education students’ and special education students’ right to attend nonresident school districts depends on the nonresident school districts’ capacity to educate the student.  According to the court, Wisconsin’s open enrollment program is not a “true” open enrollment program that allows students to attend any school district they desire.  Rather, the court explained, Wisconsin’s open enrollment program seeks to maximize school choice to the extent that a nonresident school district has excess capacity to meet a nonresident student’s needs.

For the open enrollment program to operate, the court reasoned, school districts must determine their excess capacity and resources and compare them to an open enrollment applicant’s needs.  Just as students in different grades require different services and programs, students with disabilities require different services and programs than general education students.  The court concluded that treating the needs of special education students as the same as general education students ignores one of the open enrollment program’s essential eligibility requirements i.e., excess capacity in the nonresident district to meet the applicant’s educational needs. 

After determining that the nonresident school district’s capacity to meet an applicant’s needs is an essential eligibility requirement, the court reasoned that students with disabilities, who are denied open enrollment based on lack of space are not “qualified individuals with a disability.”  Thus, the court concluded that denying open enrollment based on lack of space in the programs or services the student needs is not by reason of the student’s disability. 

Additionally, the court held that a nonresident school district’s capacity to meet a student’s needs is a fundamental component of the open enrollment program.  Thus, approving a special education student application in spite of a nonresident school district’s space limitations is not a reasonable accommodation under the ADA or Rehabilitation Act because it would fundamentally alter the open enrollment program.

The Seventh Circuit’s decision affirms Wisconsin school districts’ right to determine and apply open enrollment space limitations for general education as well as special education services and programs.  A school district’s space limitations must be applied consistently during the application period to be enforceable.  A school district may not waive its space limitations for some students while applying them to others except if the school board granted guarantees for currently attending students and/or siblings of currently attending students.  Additionally, school districts must review a student’s individualized education program (IEP) and make an individualized determination before denying a student’s open enrollment application for lack of space in a special education service or program.

The open enrollment application period for the 2019-2020 school year opened on February 4, 2019, and lasts until April 30, 2019.  School districts may not act on any applications until May 1, 2019.  Finally, nonresident districts must notify applicants if they were accepted or denied open enrollment to the district by June 7, 2019. 

For questions regarding this article or applying open enrollment space limitations in your district, please contact the author, Attorney Chad P. Wade (email:; telephone: 844-833-0826), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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