In P.F. by A.F. v. Taylor¸ the Seventh Circuit Court of Appeals (which governs Illinois), 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. The plaintiffs were three students, two with autism and one with ADHD, who each applied to transfer to nonresident schools under a Wisconsin statute. Under the statute, a Wisconsin public school district must accept transfer applicants so long as the district has sufficient space. School districts must determine how many excess spaces are available in both regular-education classrooms and special-education services. The three plaintiffs were denied enrollment by different school districts because the districts did not have any excess special education seats. The plaintiffs then sued, claiming the Wisconsin statute was discriminatory under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
The Seventh Circuit affirmed a trial court decision upholding the Wisconsin statute because the statute was not discriminatory. The Seventh Circuit judges held that different treatment of students with special needs does not make a program unlawful. Instead, federal law prohibits discrimination on the basis of stereotypes about a disability. Because districts could not turn students away simply because they were disabled, but instead allowed districts to make individual determinations based on student needs and district capacity, the program was about “actual attributes” rather than stereotypes.