Constitutional Challenges to Wisconsin Open Enrollment Program

November 25, 2014

Wisconsin On Nov. 18, 2014, a group representing three families of children with disabilities filed a lawsuit in U.S. District Court in Madison, Wisconsin, alleging that the state open enrollment system, which allows students to enroll in schools outside their home district, is an unconstitutional violation of the Equal Protection clause of the Fourteenth Amendment and federal disability law. The lawsuit, brought by the Wisconsin Institute for Law & Liberty (WILL) on behalf of the families, alleges that the open enrollment system creates a two-track application process, where traditional students can apply to schools outside their home district, but children with disabilities are often denied admittance if districts can prove that accepting the students would place an “undue financial burden” on the district. The lawsuit has been brought against State Superintendent Tony Evers, the Department of Public Instruction (DPI), and three local school districts.

The lawsuit highlights the wider issue of school choice, or the ability of parents to choose to send their children to the public or private school of their choice. Wisconsin has often been at the head of this debate—in 1990 the state enacted the first government-funded private voucher system in the country. The program, known as the Milwaukee Parental Choice Program (MPCP), provides a voucher to families at government expense which may be used to fund tuition at a private school. Seven years later in 1997 Wisconsin also enacted one of the first open enrollment programs, which allows students to attend any public school, even those outside of the student’s zoned district. These two programs highlight the controversy that often surrounds school choice. The MPCP represents a voucher program, which can raise constitutional issues under the Establishment Clause because it allows students to attend private (and frequently religious) schools with government funds (for an in-depth discussion of these issues, look at Zelman v. Simmons-Harris, 536 U.S. 639 (2002)). The Wisconsin open enrollment program, in contrast, allows students to choose between any publicly-funded school.

For traditional students in the open enrollment program, DPI will pay the costs of education directly to a nonresident district, should the student choose to attend outside of his or her zoned district. For students with disabilities, however, the enrollment costs are paid by the resident school district directly to the nonresident districts. This allows resident districts to deny open enrollment to a child with disabilities if the cost of special educations imposes an “undue financial burden” on the district.  W.S.A. § 118.51 (12)(b)1.  Students with disabilities can also be denied enrollment if any destination school district does not provide the needed special education services, or if there is no space available. One of the issues in the current lawsuit is that the open enrollment application process asks if students have disabilities, which allegedly results in this separate application consideration.

The outcome of the lawsuit remains to be seen. DPI has already taken steps to remedy the separate application consideration by requesting in its 2015-17 budget proposal that the Legislature prohibit the denial of open enrollment due to the cost of special education, and to set up a $12,000 open enrollment transfer amount to fund the additional cost of education students with disabilities. WILL and the families it represents are not seeking to end the open enrollment program; rather they are seeking a declaration that it violates equal protection and federal disability laws, an injunction that prevents the school districts and DPI from interpreting the law in a discriminatory way, and monetary damages and attorney fees.