Is it OK to have a transfer policy that explicitly treats students with IEPs differently from others? According to the 7th Circuit it is. This high level court opinion is worth some serious study by districts that accept transfer students.
Wisconsin’s state law creates a detailed procedure to implement its “Open Enrollment” policy. The procedure explicitly divides students into two categories and treats them differently: those with IEPs and those without. If you do not have an IEP your transfer request will be compared to the district’s available space in your grade level. If you have an IEP, the same factor will be considered, but also this:
Whether the special education or related services described in the child’s IEP…are available in the nonresident school district.
Consider how that would work in practice. Imagine that two 4th graders seek to transfer into the Green Bay district. One of them has an IEP dealing with his autism. The district has room for two 4th graders, but it lacks the ability to provide the services described in the student’s IEP. The general education student is accepted; the special ed kid is turned down.
Discrimination? The 7th Circuit said no:
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. University of Wisconsin, 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.
The plaintiffs made a second argument in this case—that acceptance of students with IEPs was required as a “reasonable accommodation” under Section 504. The court rejected that as well:
Neither the ADA nor the Rehabilitation Act  requires modifications that “would fundamentally alter the nature of the service, program, or activity.” The requirement that nonresident school districts have the excess capacity to meet the needs of transferring students is a fundamental component of this program. Demanding that nonresident school districts accept students regardless of their existing capacity to meet student needs would upend this key feature. Federal law does not require such an overhaul.
The court’s analysis is a good illustration of how our laws about disability discrimination are different from other non-discrimination laws. There is no way that a court would approve differential treatment of students based on race or religion. That’s because neither of those characteristics affect how the student is served. But disability does affect services. Serving a student with a disability requires a different level of services. It usually costs more. It requires professional services and/or equipment that would not otherwise be required. Thus it is not surprising to read that 71% of Wisconsin students without IEPs were accepted for transfer, whereas only 64% of students with disabilities were.
This case is worth a good review with your TASB policy consultant and school lawyer. The case is P.F. v. Stanford Taylor, decided by the 7th Circuit on January 22, 2019. We found it at 119 LRP 1475.
DAWG BONE: SOMETIMES DIFFERENTIAL TREATMENT IS NOT THE SAME AS ILLEGAL DISCRIMINATION.
Sunday is St. Patrick’s Day!! In order to afford this event its proper due, the Dawg takes a full week off. You should too! Call it “spring break” maybe. See you back here on Monday, March 25.