By SCOTT BAUER
MADISON, Wis. (AP) — Three families of children with disabilities argue in a federal lawsuit that Wisconsin’s open enrollment program is unconstitutional because school districts can reject students with disabilities while accepting others.
The lawsuit, filed Tuesday in U.S. District Court in Madison, also argues that it’s discriminatory for schools to set quotas for how many students, both with disabilities and without, they will accept under open enrollment every year.
The law requiring that districts determine the number of both regular and special education spaces available for open enrollment was passed by the Republican-controlled Legislature and signed by Gov. Scott Walker in 2011. It went into effect in the 2012 school year.
Some districts won’t accept any students with disabilities, the lawsuit said, which violates the families’ constitutional rights to equal protection that the Americans with Disabilities Act was designed to address. The lawsuit alleges that more than 1,000 students with disabilities were rejected for open enrollment last year.
The lawsuit was brought on behalf of the families by the conservative Wisconsin Institute for Law and Liberty, which announced on Wednesday that the case had been filed.
It names state Superintendent Tony Evers, the state Department of Public Instruction and the Elkhorn, Greendale and Muskego-Norway school districts.
John Johnson, a spokesman for the Department of Public Instruction, declined to comment specifically on the lawsuit, saying attorneys at the Department of Justice will be handling the case once the state is officially served.
But Johnson said access to open enrollment would be improved under the agency’s budget request submitted to Walker earlier this month. That proposal would provide a higher payment to school districts that accept students with disabilities than they receive for taking other students. Districts would also no longer be allowed to reject an open enrollment transfer on the grounds that it would cause a financial burden.
“We’re seeing changes to open enrollment,” said Sally Flaschberger, who works on the issue for advocacy group Disability Rights Wisconsin and supports the changes proposed by DPI. “We think we’re moving in the right direction.”
That group also opposes creating a taxpayer-funded voucher program for those students to attend private schools, arguing that they are better served in public schools. Advocates for special needs vouchers, who failed in the past two years to create the program, are expected to push the issue again in the coming legislative session.
The families bringing the lawsuit are asking that the law be declared unconstitutional; that schools be prevented from enforcing it; and for unspecified damages to be paid.
All of the students with disabilities whose families brought the lawsuit are minors and not named.
One resides in the Wauwatosa School District and applied to open enroll in the Greenfield School District but was rejected. Two sisters who live in the Milwaukee Public School District applied to attend the Greenfield and Greendale school districts but were rejected, the lawsuit said. Another student in the Racine Unified School District applied to enroll in Muskego-Norway, but was denied.Follow @sbauerAP