WILL Asks Judge to Declare State’s Open Enrollment Program in Violation of Federal Disability Law

WILL Asks Judge to Declare State’s Open Enrollment Program in Violation of Federal Disability Law
Lawsuit claims that all children should have the ability to choose their own school


July 30, 2015 – Milwaukee, WI – In November 2014, on behalf of six special needs children and their parents, the Wisconsin Institute for Law & Liberty sued Superintendent Evers, the Department of Public Instruction (DPI), and four school districts for rejecting their clients’ applications for open enrollment because of their disability.  Today, against the backdrop of the 25th anniversary of the Americans with Disabilities Act, WILL has filed a motion and summary judgment brief, asking a federal court to strike down provisions of Wisconsin state law that enable public schools to discriminate against children with disabilities in the public school open enrollment program.

CJ Szafir, WILL Education Policy Director explains, “Special needs children deserve the same right to choose their own school as children without special needs.  Yet last year over 1,000 special needs children were denied equal access to the open enrollment program because of their disability.  Today, we are asking Judge Conley to declare that the state’s open enrollment program, along with the administration of the program by Superintendent Evers, violates the Americans with Disabilities Act.”  The lawsuit seeks to have the program fixed so that more children can use public school choice.

Wisconsin’s open enrollment program allows parents and children to choose their own public school by applying to transfer to a school district outside from where they live.  State law permits school districts to discriminate against special needs children.  School districts will cap the number of special needs children – often at zero – while accepting children without special needs.  This two-track system treats children with disabilities differently from children without disabilities and this lawsuit alleges that it violates federal disability laws.

Consider the following stories of the children we represent:

  • In 2012, R.W. and his identical twin brother applied for open enrollment to attend Paris School District.  At first, Paris accepted both applications.  Yet a later – mere weeks before school started – they rejected R.W.’s application upon learning that he has autism.  They were not accepting any children with disabilities for open enrollment.  However, R.W.’s twin brother, who does not have a disability, was accepted.
  • In 2014, the mother of S.W. applied for open enrollment into 3 school districts but was rejected by all of them.  Although the Elkhorn School Board determined that they would set no cap on the open enrollment seats, S.W. was rejected because of having autism and being categorized as disabled.
  • Because of his autism, P.F. has been rejected for open enrollment eleven times in the last five years.  In 2014, Muskego-Norway School District approved 55 open enrollment seats for children without disabilities, but zero open enrollment seats for children with disabilities.  Therefore, they denied P.F.’s application.
  • The mother of S.B. applied for open enrollment so that her child could leave the failing Milwaukee Public Schools.  In 2014, his mother applied to enroll him in the Shorewood Public School District.  On May 27, his application was accepted by Shorewood and, on September 2, S.B. started 3rd grade.  However, upon determining that he has a disability, Shorewood retroactively rejected his open enrollment application on October 8 – over a month after the school year started.

It does not have to be this way.  Minnesota, for example, expressly prohibits schools from taking disability status into account when accepting applications for open enrollment. Nearly 70,000 children in Minnesota use open enrollment, which is 8.3% of all K-12 students.

The case, S.W. v. Evers, is before Judge William Conley in the U.S. Western District Court of Wisconsin.  The defendants in the lawsuit are the Superintendent of Public Instruction Tony Evers, the Wisconsin Department of Public Instruction, Elkhorn Area School District, Greendale School District, Muskego-Norway School District, Shorewood School District, and Paris School District.

The summary judgment brief can be found here.  The original complaint is available upon request.


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