Federal District Court Concludes Wisconsin’s Open Enrollment Law Is Not Discriminatory On Its Face

In S.W. v. Evers, the U.S. District Court, Western District of Wisconsin, concluded that Wisconsin’s open enrollment law, which permits school districts to deny enrollment to nonresident students with disabilities based on the district’s inability to implement an individual student’s IEP, is not discriminatory on its face.

The plaintiffs in the case consisted of six students, each of whom has a disability ranging from ADHD to autism.  All six plaintiffs were denied enrollment as nonresident students with disabilities into several Wisconsin school districts, each on the basis that the districts did not have adequate space or resources to implement their particular IEPs.  Accordingly, the plaintiffs brought claims under Title II of the ADA and Section 504 of the Rehabilitation Act against the State Superintendent of Public Instruction and the five separate school districts who denied admission.

In reaching its decision, the court highlighted that the law does not focus on whether the applicant has an IEP in general, but rather allows the school district to review each applicant’s IEP and determine whether the district is capable of providing the required instruction and services to each particular applicant.  Based on this interpretation, the court concluded that (1) the law “can be applied in such a way as to avoid generalizations about children with disabilities, divorced from actual educational service and space needs;” and (2) that “consideration of the availability of space serves a legitimate, non-discriminatory purpose.”

While this case interprets a Wisconsin statue, as opposed to an Illinois statute, the takeaway is that it is essential to avoid making generalizations about children with disabilities.  Whether it is evaluating nonresident enrollment applications or drafting IEPs, districts must assess each student’s individual circumstances.  This is a theme the Supreme Court of the United States stressed in its recent decision in Endrew F. v. Douglas County School District, when it stated that “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” and is a theme that will continue to prevail in future decisions.

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