Defending an Open Enrollment Appeal

1. Defending an Open Enrollment Appeal Step 1: Make a Good Decision Step 2: Explain It

2. About Appeals • A parent may appeal a school board’s open enrollment denial to the DPI… • …within 30 days of the date the notice is postmarked or delivered to the parent

3. When an Appeal is Filed DPI will.. • Notify district of appeal and send copy of appeal. • Establish schedule for submission of record of decision and briefs: • 2 weeks for record. • 10 days for briefs. • 7 days for response briefs.

4. All materials sent to the DPI must be copied to the other party!!

5. DPI’s Review & Decision • DPI’s decision will be based on the record of the decision and written argument by the parties. • No ex parte communication. • The DPI is required to uphold the school board’s decision unless it finds the decision was arbitrary or unreasonable.

6. Decision will be sent to both parties by first class mail. • Most decisions are mailed end of July or in August. • Losing party may appeal decision to circuit court in the county in which the appellant resides.

7. Defending an Appeal Step 1:Make a Good Decision

8. Elements of a Good (or bad) Decision • State Law • Wis. Stats. § 118.51 • Wis. Adm. Code ch. PI 36 • Court Decisions • Policies • Written Criteria • Written Procedures • Implementation • Documentation

9. Policies • Are your school board policies current? • Do they comply with state law? • Do they accomplish what you wish them to accomplish? • Were they adopted prior to the beginning of the current application period?

10. Written Criteria • Do you have written criteria (i.e. desired class sizes)? • Do they comply with state law? • Are they current? • Are they clear? • Are they included in board policy or at least consistent with the board’s policy?

11. Written Procedures • Do you have written procedures for: • Granting preferences & guarantees? • Conducting random selections? • Mailing notices of denial? • Reviewing cost estimates? • Are they current? • Do they comply with state law?

12. Implementation • Did you follow the policies, criteria and procedures? • Were your decisions consistent? • Did you make non-arbitrary, reasonable decisions based on policies, data and facts? • Were your decisions mailed by the statutory deadline?

13. For individual decisions (i.e. special education space & undue financial burden) • did you consider the student’s IEP or the cost estimate before denying the application? • For group decisions (i.e. space) • did you determine the number of available spaces prior to acting on the applications?

14. Documentation • Affidavits for random selection? For mailing notices of denial?* • Results of space determinations, preferences, and random selections? • Financial data to explain decision concerning undue financial burden? *Even more important than before because 30 days to appeal begins when notice of denial is postmarked.

15. Making Good Space Decisions

16. Statute • District may consider availability of space in schools, programs, classes or grades within the district. • Must give preference to continuing students and siblings. • May grant guarantee to continuing students or siblings See Wis. Stats. § 118.51 (3) (a) 2. and (5) (a) 1.

17. McMorrow Requirements • Determine # of available spaces • Grant guarantees, if permitted by policy • Grant preferences • Select remaining students randomly • No exceptions to space criteria See McMorrow v. DPI, 2000 WI App 173

18. Policies • Criteria for denial may include the availability of space in the schools, programs, classes or grades within the district. • No policy, no denial due to space.

19. School board may consider: • class size limits and pupil-teacher ratios • enrollment projections • may include currently-attending students and siblings in the count of occupied spaces

20. Policy must include statement of required preference • Currently attending students and siblings are entitled to preference • Policy may provide that currently-attending students or siblings will be approved even if space not otherwise available

21. Policy Problem: Preferences & Guarantees • Be sure you know the difference • Be sure your policy reflects what you wish to do • Preference = first chance to an available space • Guarantee = acceptance even if space not available

22. If you wish to grant a guarantee… …If the XYZ school board determines that space is not otherwise available for open enrollment pupils in the grade or program to which the pupil has applied, the school board may (shall?) nevertheless accept an applicant who is already attending school in the nonresident school district [and/or a sibling of the applicant].

23. …or The school board may (shall?) guarantee acceptance to students currently attending school in the district, [and/or a sibling of a currently-attending student]

24. Policy Problem:Improper Preferences • Preferences must be granted to currently-attending students and siblings • No greater preference is to be granted to one over the other • Guarantees may be granted to currently attending students or siblings • May choose one or the other

25. Cannot subdivide groups, i.e.: • all currently attending students receive preference (or guarantee), regardless of reason for attendance • all siblings receive preference (or guarantee), regardless of reason for attendance of the currently-attending sibling

26. Written Criteria & Procedures • If you use class sizes limits, be sure they are specified in policy or other written criteria, for example: • Grades K-3: 18 students • Grades 4-6: 20 students • Grades 7-8: 22 students • Grades 9-12: 24 students

27. If you use class size ranges, be sure to specify to what point in the range the district will accept students, for example: • Grades K-3: 18-22 students. • The district will accept students to the bottom?, midpoint? or maximum? of the range.

28. If you use subjective criteria, be sure to explain what will be considered, such as: • class size • needs of students • experience of teachers • aide assignments

29. Building capacity is generally used if the district is denying all transfers because building capacity has been exceeded. • However, if limited space is available under a building capacity criterion, the district generally must still designate spaces by grade.

30. Be sure you have a written description of your random selection process • If a student is approved or selected randomly, the student’s siblings receive preference for any remaining spaces

31. Implementation • Calculating Available Spaces Using Class Sizes

32. If you include currently-attending students in your count of occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

33. Example 1 - ok

34. Example 2 - ok

35. Example 3 - ok

36. Example 4 – not ok

37. Calculating Available Spaces Using Other Criteria • Assignment committee • Building capacity (still need to use some criterion to determine spaces by grade) • SAGE • Enrollment projections

38. Selecting Students • Grant guarantees if provided in school board policy • Grant preferences • Currently-attending students • Siblings of currently-attending students • Select remaining students randomly following written procedures

39. Documentation • Open enrollment policies and administrative rules • Other relevant policies and administrative rules • Space • Written procedures • Administrative memos concerning calculation of space and selection of students

40. School board minutes • Results of random selection • Enrollment projections – include explanation

41. List of applications and approvals and denials, by grade

42. List of applications and approvals and denials, by grade

43. Making Good Undue Financial Burden Decisions

44. Statute • If the cost of the special education or related services… • As proposed to be implemented by the nonresident district... • Would impose on the resident district an undue financial burden… See Wis. Stats. § 118.51 (12) (b)

45. In light of the resident school district’s: • Revenue limit, • Ability to pay, and, • Per pupil costs for children with disabilities continuing to be served by the resident district. • …

46. The resident district may: • Deny the open enrollment • Require an open enrolled student to return to the resident district if the cost is based on an IEP created or revised after the student has begun attending the nonresident district

47. Policies • Not specifically required in statute, but, • Recommend districts adopt statutory language in policy.

48. Written Procedures • UFB is a both a data-driven and procedure-driven decision. It is strongly recommended that districts establish written procedures for reviewing the cost estimates – and follow them.

49. Recommended Procedures • Review special education and related services required in IEP. • Review estimate provided by the nonresident school district. • Consider only actual, additional student-specific special education costs.

50. Are there cost “savings?” • Subtract any costs that would have to be paid whichever district the student attends, such as: • Individual aide • Contracted services • Special transportation