Many districts in Texas accept transfer students, but reserve the right to turn a student down if there is no room in the student’s grade level. What if you have room at the grade level, but the student has an IEP that will require services you are not prepared to offer?

This issue came up in Wisconsin which has a statewide Open Enrollment Law.  In the lawsuit, the plaintiffs claimed that the Open Enrollment Law discriminated on the basis of disability.  The Law permitted students to enroll in a non-resident district, but permitted the receiving district to reject the application based on several criteria, one of which was “Whether the special education or related services described in the child’s IEP…are available in the nonresident school district or whether there is space available” to provide the services required by the IEP.

The court held that this provision did not discriminate on the basis of disability.  The court noted that it would be “problematic” if the law permitted rejection of an application solely because the student had an IEP.  However, the court interpreted the provision to require “assessing the availability of space as it pertains to specific services or specialized teachers or other providers.”  The court was OK with that.

You might want to take a look at your district’s policy on transfers and see how it comports with this Wisconsin law.  Obviously any district that accepts transfers and then turns down a special education student is going to need a good, non-discriminatory reason for that decision.  This case lends credence to the notion that the availability of services and of space are relevant considerations.

The case is S.W. v. Evers, decided by the District Court for the State of Wisconsin on October 3, 2017.  We found it at 70 IDELR 252.

DAWG BONE: MAKE SURE YOUR TRANSFER POLICY WILL NOT LEAD TO DISCRIMINATION BASED ON DISABILITY.