ON-Lion Letter

Wisconsin's open-enrollment program allows families to enroll their children in a public school outside of the district in which they live.  It is an excellent program that gives parents educational choice, helping to send their children to the public school that best meets their children's individualized needs.  The program is immensely popular and, last year, nearly 30,000 children took advantage of it.  But children with disabilities do not have equal access to the program; they often cannot enjoy the benefit of choosing a different public school.

The Wisconsin Institute for Law & Liberty in Milwaukee represents four children with disabilities who originally attended school at their local public schools.  Over time, they grew increasingly frustrated by the special-needs services provided by their school districts.  One parent even had to file a complaint over how the school was treating her child.  The schools were failing their children and change was needed.  As a result, they all decided that, like their neighbors and friends, it was time to use Wisconsin's open-enrollment program to transfer to a school district with better special education services.  

However, despite each of them applying for open enrollment at multiple school districts, the children's applications were all rejected solely because they have a disability.  They were not alone.  Last year, more than 1,000 disabled children, through no fault of their own, were denied open enrollment due to their disability.          

In November, WILL filed a federal lawsuit seeking to end this discrimination against children with disabilities.  "Wisconsin’s open enrollment program gives parents the freedom to find a public school that best meets their child's individualized needs," according to CJ Szafir, education-policy director at WILL, which is substantially supported by Milwaukee's Lynde and Harry Bradley Foundation.  "All children, regardless of whether they have a disability, deserve equal access to this program."

But state law obstructs such equal access.  State law allows non-resident school districts to create separate open-enrollment processes for children with disabilities and children without disabilities.  School districts are permitted to cap the number of children with disabilities that they will accept through open enrollment -- often zero -- while still accepting other students without disabilities.

WILL's suit claims the two-track system for Wisconsin's open-enrollment program violates federal disability law, including the Americans with Disabilities Act, and is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  It is not seeking to stop the program, but rather demanding that children with disabilities be treated the same under the open-enrollment law as children without disabilities.

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