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S.W. v. Evers

United States District Court, W.D. Wisconsin

October 3, 2017

S. W., S. G., Ca. R., Ch. R., D. R., P. F., A. F., R. W., E. W., S. B. and N. B., Plaintiffs,



         In this civil action, the plaintiffs are children with disabilities who seek to open enroll as non-residents in one of the school districts named as defendants, as well as their parents. Plaintiffs allege that Wisconsin's Open Enrollment Law, Wis.Stat. § 118.51, blocks their enrollment in violation of Title II of the Americans with Disability Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), and the Equal Protection Clause of the United States Constitution. Before the court are the parties' cross-motions for summary judgment, on which the court already heard oral argument. For the reasons that follow, the court will now grant summary judgment to defendants on plaintiffs' challenges to the Open Enrollment Law under both the ADA and Rehabilitation Act. As for plaintiffs' individual, as-applied challenges, the court will also grant summary judgment to the school district defendants, save one -- R.W.'s claim against the Paris School District. Finally, the court will grant summary judgment to defendants on plaintiffs' Equal Protection claims. Accordingly, only R.W.'s ADA and Rehabilitation claim will proceed to a bench trial.


         A. Challenged Statute

         Plaintiffs challenge Wisconsin's Open Enrollment Law, which provides in pertinent part:

(5) Nonresident school district acceptance criteria.
(a) Permissible criteria. Except as provided in sub. (3)(a)2., the criteria for accepting and rejecting applications from nonresident pupils under subs. (3)(a) and (3m)(a) may include only the following:
1. The availability of space in the schools, programs, classes, or grades within the nonresident school district. The nonresident school board shall determine the number of regular education and special education spaces available within the school district in the January meeting of the school board . . . In determining the availability of space, the nonresident school board may consider criteria such as class size limits, pupil-teacher ratios, or enrollment projections established by the nonresident school board and may include in its count of occupied spaces all of the following:
a. Pupils attending the school district for whom tuition is paid under s. 121.78(1)(a).
b. Pupils and siblings of pupils who have applied under sub. (3)(a) or (3m)(a) and are already attending the nonresident school district.
c. If the nonresident school district is a union high school district, pupils who have applied under sub. (3)(a) or (3m)(a) and are currently attending an underlying elementary school district of the nonresident school district under this section.
2. Whether the pupil has been expelled from school by any school district during the current or 2 preceding school years for any of the following reasons or whether a disciplinary proceeding involving the pupil . . .
3. Whether the nonresident school board determined that the pupil was habitually truant from the nonresident school district during any semester of attendance at the nonresident school district in the current or previous school year.
4. Whether the special education or related services described in the child's individualized education program under s. 115.787(2) are available in the nonresident school district or whether there is space available to provide the special education or related services identified in the child's individualized education program, including any class size limits, pupil--teacher ratios or enrollment projections established by the nonresident school board.
6. Whether the child has been referred to his or her resident school board under s. 115.777 (1) or identified by his or her resident school board under s. 115.77 (1m)(a) but not yet evaluated by an individualized education program team appointed by his or her resident school board under s. 115.78 (1).

Wis. Stat. § 118.51(5)(a).[1]

         Of course, the parties' focus in this case is primarily on the bolded criteria #4, which expressly allows school districts to consider the availability of specific service or space needs set forth in a non-resident child's “individualized education plan” or “IEP.”[2]

         The parties' submissions provide additional detail on the process for applying for open enrollment, including the role of defendant State of Wisconsin Department of Public Instruction in that process. The court need not recount these facts in detail, other than to note that the intent of the Open Enrollment Program is to be cost neutral by requiring a child's resident district to pay “tuition” to a nonresident district who accepts that child for admission. This is done through an adjustment to the state aid awarded both the resident and non-resident district, with state aid to the nonresident school district increased by an equal amount to the decrease in aid to the resident school district. See Wis. Stat. § 118.51(16). As an example, the state provided $6, 635 in aid per student for the 2014-15 school year. If the student has a disability, the non-resident school district determines the additional cost of providing services to the student and adds that amount to the tuition.[3] Wis.Stat. § 118.51(17); see also Wis. Stat. § 118.51(12)(b) (providing that a resident district may deny an application to leave that resident district based on a determination that the estimated cost will cause an “undue financial burden” on the resident district.”).

         B. The Parties

         Along with their respective parents, plaintiffs consist of six children, two of whom are sisters. Plaintiffs contend that one of the named school districts denied each child the opportunity to open enroll as a non-resident student because of a disability. Plaintiffs have also named the State of Wisconsin Department of Public Instruction (“DPI”) and Wisconsin Superintendent Tony Evers in his official capacity. For ease of reference, the court organizes the undisputed facts by child and the accused school district.

         i. R.W. and the Paris School District

         Plaintiff R.W. resides in the Kenosha Unified School District and has autism. Plaintiff R.W. and his identical twin brother sought to open enroll in the Paris School District. Paris is a small, rural school district comprised of one school building that houses 280 students, comprising all K-8 students for the entire district. Going into the 2012-2013 school year, Paris had one full-time special education teacher and one fulltime special education aide. Also going into that school year, Paris expected 35 students with IEPs, each of whom require varying levels of special education services based on their particular disabilities. For the 2012-2013 school year, open enrollment spaces were determined at a School Board meeting held on November 28, 2011. Paris concluded that “there were no seats available in special education, but there was space available in the incoming general education kindergarten class.” (M-N & Paris's PFOFs (dkt. #75) ¶ 34.)

         At the time R.W.'s parents submitted his application, he did not have a formal IEP in place. Accordingly, the box on his application form asking whether the child had an IEP was checked “no.” RW and his twin brother were both accepted. R.W. attended a kindergarten screening on or about May 16, 2012, at which time, his mother disclosed that R.W. was autistic. Paris's School Administrator Roger Gahart then informed R.W.'s mother that Paris did not have space for him in its special education program.

         The parties dispute whether Gahart told R.W.'s mother that the Paris School District would have rejected his application had R.W.'s autism diagnosis been disclosed on the application, and whether Gahart told her that Paris does not accept open enrollment applications from children with disabilities. (Pls.' Resp. to M-N & Paris's PFOFs (dkt. #98) ¶¶ 44-45.) Moreover, while informing R.W.'s mother that there was no space for him, the school district apparently never formally revoked R.W.'s acceptance, choosing instead to wait for the results of the IEP.

         As R.W.'s resident district, the Oshkosh Unified School District did end up evaluating him for an IEP. The resulting report set forth various requirements for therapy and other services, concluding that R.W. should be placed in a “kindergarten classroom that is collaboratively taught by a general education and special education teacher.” (Gahart Decl., Ex. E (dkt. #77-5) 9.) Paris's special education teacher reviewed the report and IEP, and then confirmed that the Paris School District did not have space in its special education program to implement R.W.'s IEP. While plaintiffs purport to dispute that the special education teacher reached this opinion, based on that same teacher telling R.W.'s mother's that she was excited to work with R.W. and believed there was room for him (Pls.' Resp. to M-N & Paris's PFOFs (dkt. #98) ¶ 590), there is no dispute that to meet R.W.'s IEP, the school district would have had to hire a part-time special education teacher and a part-time aide to work with R.W. on a one-on-one basis, as well as contract for occupational therapy services.

         ii. P.F. and the Muskego-Norway School District

         Plaintiff P.F. resides in the Racine Unified School District, but has applied to a number of nonresident schools over some five years, having been rejected 11 times, including most recently by defendant Muskego-Norway School District as a sixth grader for the 2014-15 school year. P.F. also has autism.

         At the end of 2013, Muksego-Norway audited its enrollment numbers and determined that it had 50 seats available in its general education program for the 2014-2015 school year, including 6 seats for sixth grade, but no available spaces in its “special education program.” (M-N and Paris's PFOFs (dkt. #75) ¶ 10.) The Board approved these numbers at its January 2014 meeting.

         P.F.'s application for open enrollment to Muskego-Norway's sixth grade class for the 2014-2015 school year disclosed that he currently received special education services and had an IEP in place. (Thompson Decl., Ex. B (dkt. #76-2).) P.F.'s resident school district in Racine forwarded a copy of that IEP to Muskego-Norway. Among other things, the IEP disclosed that P.F. was diagnosed with autism, had the cognitive and motor functioning of a 2- to 3-year old, is not fully toilet trained, requires frequent sensory breaks, and needs close adult supervision throughout the day, as well as that his “removal from the general education classroom is necessary.” (Thompson Decl., Ex. C (dkt. #76-3).) Critical to P.F.'s application, the IEP also required “personal bus transportation for P.F.'s safety, due to the severity of the disability.” (Id.)

         After analyzing P.F.'s IEP, the Muskego-Norway School District completed an open enrollment special education cost estimate and invoice, which found that the total additional cost to educate P.F. would be $50, 382, the bulk of which was due to special transportation needs ($41, 400 per year alone) between P.F.'s home in Racine and the school in the Muskego-Norway district. Given the amount of this estimate and invoice, the Racine Unified School District decided to disallow the transfer because of the undue financial burden on its school district. Despite Racine rejecting the transfer after receiving its analysis, however, Muskego-Norward informed P.F.'s parents that his application was rejected because “[s]pace is not available in the special education or related services required in your child's individuals education program (IEP). [Wis. Stats. § 118.51(5) (a) 4.]” (A.F.'s Decl., Ex. C (dkt. #38-3).)

         iii. S.W. and the Elkhorn School District

         Plaintiff S.W. lives in Wauwatosa. Like the first two plaintiffs discussed above, S.W. has autism. In 2014, S.W. sought open enrollment from three non-resident school districts, including defendant Elkhorn School District. He was rejected by all three.

         For the 2014-2015 school year, Elkhorn School District's Board accepted the recommendation of the District Administrator Jason Tadlock not to cap the number of spaces available for the 2014-2015 school year. The DPI Open Enrollment Application Log shows that Elkhorn received 142 applications for open enrollment and accepted 139 -- one application was denied because of an earlier expulsion and two were denied because they were incomplete. S.W.'s application apparently was counted as an accepted application.

         The application itself indicated that (1) S.W. received special education services and (2) he had an IEP in place. (Essman Decl., Ex. A (dkt. #47-1).) The application also indicates that S.W.'s “preferred program” was “Lakeland School (for special needs), ” and it checked “yes” in response to the question, “Limit to specific school and/or program listed above?” (Id.) Lakeland School is a self-contained facility that offers special education services for ...

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