P.F., a minor, by A.F., his parent, et al., Plaintiffs-Appellants
Carolyn Stanford Taylor,[*] State Superintendent of Public Instruction, et al., Defendants-Appellees.
April 20, 2018
from the United States District Court for the Western
District of Wisconsin. No. 14-cv-792 - William M. Conley,
Sykes and Barrett, Circuit Judges, and Durkin, District
Wisconsin's open-enrollment program, a public-school
student can apply to transfer from his resident school
district to a nonresident district that has an available
space for him. Wis.Stat. § 118.51. The program
distinguishes between "regular education and special
education spaces." Id. § 118.51(5)(a)1. If
a student with a disability requires special services, a
nonresident district may deny the student's transfer
application if it lacks the services or space necessary to
meet those special needs. Id. § 118.51(5)(a)4.
suit concerns a group of disabled schoolchildren whose
transfer applications were denied because nonresident
districts determined that they could not meet the
students' special needs. The students' parents, on
their children's behalf, sued the school districts and
various state actors seeking injunctive, declaratory, and
compensatory relief under Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12132;
section 504 of the Rehabilitation Act, 29 U.S.C. §
794(a); and the Equal Protection Clause, U.S. Const. amend.
XIV, § 1. They argued that the program unlawfully
discriminates against disabled children because of their
disabilities. The district judge concluded that the program
did not violate federal law and entered summary judgment for
affirm. Differential treatment of special-needs students
doesn't make the program unlawful. Federal law
"forbids discrimination based on stereotypes about a
handicap, but it does not forbid decisions based on the
actual attributes of the handicap." Anderson v.
Univ. of Wis., 841 F.2d 737, 740 (7th Cir. 1988). The
program makes decisions based on the actual needs of disabled
students, so it complies with federal law. And even if we
analyze the case as a request for an accommodation, the
requested change would fundamentally alter the program, and
neither the ADA nor the Rehabilitation Act require
keeping with the Individuals with Disabilities Education Act,
20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law
guarantees children with disabilities a "free
appropriate public education" and requires school
districts to provide special-education services according to
a disabled child's "individualized education
program." Wis.Stat. §§ 115.76(7),
115.77(1m)(d). An individualized education program
("IEP") outlines the "special education and
related services" or "program modifications or
supports" that the disabled student requires.
Id. § 115.787(2)(c). Typically the school
district in which a special-needs student resides must
satisfy the IEP requirements unless the student transfers
districts. Id. §§ 115.76(10), 115.77.
open-enrollment program permits such a transfer. Id.
§ 118.51(2). The program operates on a calendar. In
January school districts determine how many excess
"spaces" are available in both regular-education
classrooms and special-education services. Id.
§ 118.51(5)(a)1. They can consider factors like
"class size limits, pupil-teacher ratios[, ] or
enrollment projections." Id. §
118.51(5)(a)1, (5)(a)4. Regular-education spaces are
typically determined by grade level, id. §
118.51(5)(a)1, while "special education spaces" are
determined "by program or services," Wis. Admin.
Code PI § 36.06(5)(a).
February and April, interested students may submit transfer
applications to up to three nonresident districts. Wis.Stat.
§ 118.51(3)(a)1. If an applicant has an IEP in place,
the resident district will send a copy of the plan to the
nonresident district. Id. § 118.51(3)(a)1m.
Beginning in May nonresident districts determine which
applications they will accept by comparing available space to
the needs of the applicants. Id. §
118.51(3)(a)2. For applicants with IEPs, nonresident
districts determine whether they have the capacity to meet
each student's special needs. Relevant factors for this
[w]hether the special education or related services described
in the child's individualized education program under
[Wis. Stat.] § 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.
Id. § 118.51(5)(a)4.
notify applicants of their acceptance or rejection in June.
Id. § 118.51(3)(a)3. Most applications are
accepted, including those submitted by students with IEPs. In
2013- 2014, districts approved 3, 718 out of 5, 822 transfer
applications for students with IEPs, or roughly 64%. The ...