Wisconsin’s open enrollment program violates federal disability laws, alleges a lawsuit filed last week in the Madison U.S. District Court.
Three families of children with special needs are arguing that it is unconstitutional for the program, which permits parents to enroll children in schools located outside their home districts, to allow school districts to reject students with disabilities. The lawsuit is being brought by the conservative Wisconsin Institute for Law and Liberty against the Department of Public Instruction, State Superintendent Tony Evers and three separate school districts.
“There’s an additional set of limitations imposed on families of children with special needs that’s interfering with their ability to exercise the freedom of choice available to everybody else,” Rick Esenberg, WILL president, told Watchdog in a Nov. 24 article.
The lawsuit also states that it is discriminatory for schools to be allowed to set quotas of how many disabled and non-disabled students to accept each year, violating the Americans with Disabilities Act.
The law, which was intended to give parents greater control over educational choices for their children, was passed in 2011 by the Republican-controlled state legislature and approved by Gov. Scott Walker. It first came into effect in 2012.
The families for whom WILL is filing the lawsuit have indicated three desired outcomes: that the law be ruled unconstitutional, that schools be blocked from enforcing discriminatory measures and that damages be paid in an unspecified amount.
Disabilities range widely, and the families bringing the lawsuits are referred to only by their initials because the students in question are minors. In adults, lower back pain is actually the leading cause of disability, and the American Chiropractic Association estimates that 31 million Americans suffer from this debilitating pain at any given time.
But it seems clear that the concern over the open enrollment law is directed at learning, as well as physical, disabilities.
The rationale behind the law’s treatment of special needs students is that accepting them could cause an “undue financial burden” for some districts.
But according to Esenberg, “There should never be any undue financial burden the way the system works.” This is because any district that incurs additional expense in educating a student is supposed to be able to get those funds from the student’s home district.
But 42% of special education students who attempted to transfer into new districts in the 2012-13 open enrollment period were rejected, the most common reason given by districts being the “undue financial burden” loophole.
School officials have declined to comment on the lawsuit, but have argued that proposed budgetary changes submitted in early November would alleviate concerns over funding, leading to more options for special needs students and their families.
Esenberg said the goal is simply “to come to a resolution where these families have the same freedoms that everyone else has to try to move their children to a public school [that] will better serve their needs.”