Defending an Open Enrollment Appeal

1. Defending an Open Enrollment Appeal Making & Defending Good (Legal) Decisions

2. Parents May File Appeal Parents may file an appeal within 30 days of the date the denial notice is postmarked or delivered to the parent. DPI is required to affirm the school board’s decision unless the DPI finds that the decision was arbitrary or unreasonable.

3. Step 1: Make a good decision. Step 2: Explain it. Two Steps to Defend Appeal

4. Elements Of a Good Decision State Law Wis. Stats. § 118.51 Wis. Adm. Code § PI 36 Court Decisions School Board Policies Required in Wis. Stats. § 118.51 (4) Written criteria Written procedures Implementation Documentation

5. School Board Policies Wis. Stats. § 118.51 (4) requires school boards to adopt open enrollment policies. Open enrollment applications may only be denied for reasons specified in: Statute and School board policy If reason not adopted in policy, may not deny.

6. School Board Policies Policies must specify approval/denial criteria. Any change in school board policy must be made prior to the beginning of the application period to which the policy will apply. School board policies must be followed exactly and consistently.

7. Policy Review Are your policies current? Were all amendments adopted prior to the beginning of the application period? Are there supplements to the policy? Regulations/administrative rules Written criteria not in policy or rules Other policies that may affect open enrollment decisions (i.e. class size standards) Are your policies internally-consistent?

8. What Happens When An Appeal is Filed?

9. Parent Files Appeal With DPI Must be filed within 30 days of the date the denial notice was mailed or delivered to the parent, whichever occurs first.

10. DPI Reviews Appeal Is it timely? If no, notify parent that appeal is not accepted. Is it complete? Name of pupil, name of district, signed... Does the parent allege the district’s decision was arbitrary or unreasonable, as it relates to the reason for denial? If no, return to parent to remedy. If yes, proceed to process the appeal.

11. Notify District & Request Record DPI sends a letter to the district and parent that: Notifies the district that an appeal has been received. Instructs the district to send the record. Establishes a briefing schedule.

12. Due Dates Generally, the record is due 2 weeks after DPI sends the notification letter. Initial briefs are due 10 days after the record is due. Reply briefs are due 7 days after the initial briefs are due. Everything sent to the DPI must also be sent to the other party. Redact personal information.

13. District Submits the Record

14. Record Always Includes Copy of the application Copy of the notice of denial and any correspondence sent with it. Proof of timely mailing – affidavit. Copy of open enrollment policy and any other policies that affect the decision (such as class size standards). Minutes (including relevant handouts) of any committee or school board meetings at which criteria were set and/or decisions made.

15. Provide All Relevant Documentation If in doubt, include it… But do not throw in the kitchen sink, e.g. Do not need to include slides from entire workshop presentations. If you believe they are necessary to support your appeal, include relevant pages. Do not need to include entire copies of open enrollment laws or administrative rules. Use quotes and citations. Do not need to include entire volume of enrollment projection studies, include relevant quotes or pages and explain them.

16. Specific to Undue Financial Burden Copy of PI 2092, Cost Estimate from Nonresident District Without completed PI 2092, may not deny open enrollment. Form PI 9414, Submission of record in undue financial burden appeal Fill out all sections relevant to the decision. Any other data used to make decision. Explanation of how data were used to determine the cost is an undue financial burden.

17. Note to Nonresident District: Send an estimate even if there is no additional special education cost. If you do not have a valid IEP, send a letter explaining that without a valid IEP, you cannot estimate the cost.

18. Specific to Expulsions A copy of the expulsion order or notice of pending disciplinary proceeding that includes the reason for the expulsion or pending disciplinary proceeding. Evidence that the school board reviewed the expulsion order to determine that the denial is permitted under the open enrollment law.

19. Specific to Special Education Referred for Special Education Evaluation That Has Not Been Completed. A copy of the referral and notice to parent. Evidence that the pupil has not been evaluated or does not have a current IEP.

20. Special Education Not Available A copy of the pupil’s IEP. A description and explanation of the special education / related services required in the IEP that are not available in the school district.

21. Special Education Space Not Available A copy of the pupil’s IEP. A description of the special education / related services required in the IEP. The district’s space/caseload criteria for the special education / related services. Current staffing the special education / related services. Projected enrollment in the special education / related services.

22. New or Revised IEP In addition to other documentation required for undue financial burden, special education not available or special education space not available: Evidence that the decision was based on an IEP created or revised after the pupil began attending the nonresident school district.

23. Pupil does not have a valid IEP. Evidence that the pupil has been found to have a disability. Evidence that the pupil does not have a current IEP. Reason the pupil with a disability does not have current IEP. Note: This is not a specific reason to deny under state law. If denial is based on no valid IEP, it must be explained in light of a statutory reason for denial.

24. Specific to Space For all grades: Criteria, data and procedures used to determine space availability, including. Class size criteria and sections for each grade, or other criteria if not using class size. Random selection procedures. Enrollment projections and how they were determined. Number of spaces available, by grade.

25. Number of applications received, approved and denied. pupils who received guarantees and/or preference. pupils selected randomly. Did you allow any nonresident students to attend the district who are not: Open enrolled, Chapter 220, Attending under tuition waiver, or Whose tuition is paid by another school district. Explain.

26. Should the District Submit a Brief? Yes!

27. A Brief Is Your Opportunity To: Explain your decision. Argue your case. Do not assume that your data speaks for itself. Do not assume that DPI will interpret the data the same way you do. Be clear and to the point. A clear explanation can sometimes make the difference between being upheld and overturned.

28. Legal Advice It is not required to have an attorney handle your appeal. However, having advice when the decision is made may: Help you appropriately handle your appeal yourself, or Ensure your attorney has what s/he needs to handle your appeal. Useful to have an attorney: Review your policies and criteria. Review how you implement your criteria. Provide advice about documentation. Provide advice/training in how to compile and submit a record and write a brief.

29. DPI Reviews Appeal

30. Basics Was application valid and timely? Was notice of denial timely? Did notice include reason for denial? Was appeal timely?

31. Policy Review Does school board have a policy? Does policy permit the board to deny for this reason? Is the policy in compliance with state law? Does board have specific criteria in policy, rule or other materials?

32. Implementation Is district’s decision in compliance with state law? Did the district follow its policy exactly and consistently? Did the district follow all required procedures? Did the district consider all factors prior to making its decision? Was the school board’s decision arbitrary or unreasonable?

33. If Record Is Incomplete Without complete information, the DPI may be required to find the decision to be arbitrary. Do not count on the DPI to ask for more information. We may, but are not required to, contact the district to providing missing information or explanation.

34. Undue Financial Burden

35. The most common reasons for an undue financial burden denial to be overturned are: The board jumped to denial without considering the proposed cost in light of its total economic circumstances. The board may have made a decision that was neither arbitrary nor unreasonable, but did not provide adequate documentation and explanation on appeal (in spite of DPI requests for additional information).

36. State Law Wis. Stats. § 118.51 (12) (b) 1. and 2. May deny if the costs of the special education / related services… As proposed to be implemented by the nonresident district… Are an undue financial burden in light of: Total economic circumstances, including revenue limit, ability to pay costs and per pupil special education costs for children continuing to be served by the resident district.

37. Cost of Special Education Actual, additional costs to provide special education / related services in nonresident district. If the nonresident district has not provided an estimate: Try to get estimate—document it. If no estimate in time to make a timely notice, it may be concluded that there is no actual, additional cost.

38. Calculate Net Cost Use only special education cost. Subtract any savings as a result of the transfer: i.e. cost the resident district would no longer have Result is Net OE Special Education Cost This is what may be considered UFB.

39. Implemented by Nonresident District Nonresident district determines how to implement IEP. Not UFB simply because the nonresident district would implement the IEP differently than the resident district. i.e. individual aide.

40. Undue Financial Burden Can be argues that any cost is a “financial burden.” However, burden must be “undue.” Is not UFB simply because: The cost is a large $ amount. The resident district can provide the special education. The resident district can provide the special education less expensively.

41. Total Economic Circumstances Revenue limit If district is eligible for TOS revenue limit exemption for the pupil, may not deny due to revenue limit. Ability to pay Per pupil costs Consider prior to denying application---not sufficient to justify after the fact.

42. Elements of Successful UFB Appeal Actual additional cost is… Net OE Cost Is…. District will not have a reduction in expenses if the student is not served in resident district… District examined total economic circumstances, including… Determined cost is an undue financial burden. Provide data to support decision

43. Expulsion

44. State Law & School Board Policies Wis. Stats. § 118.51 (5) (a) 2. District may deny pupil who, based on specified conduct, has been expelled in the current or two preceding school years or is the subject of a pending disciplinary proceeding. May deny even if pupil has been permitted to return to school. Decision may be appealed. School board must adopt policy or may not deny for this reason.

45. Implementation & Documentation Obtain a copy of the expulsion order or notice of pending disciplinary proceeding. Ascertain if the expulsion was for one of the 4 specified reasons. 5 statutory reasons to expel a pupil, but may not deny open enrollment under this statute if the expulsion was due to “repeated violation of school rules.” If the district does not do this, the decision may be overturned.

46. Current Expulsion Wis. Stats. § 120.13 (f) A school board is not required to admit a pupil during the term of a pupil’s expulsion. Regardless of reason for expulsion. Denial for this reason is not an open enrollment reason and is not appealable: Parent may file appeal, if denied for this reason, appeal will be dismissed. If both reasons are valid, deny for both.

47. Nonresident District Denials for Special Education Reasons

48. Referred for Spec Ed Evaluation

49. State Law Wis. Stats. 118.51 (5) (a) 6. School board may consider whether the child has been referred to his or her resident school board under s. 115.777 (1) or identified by his or her resident school board under s. 115.77 (1m) (a) but not yet evaluated by an IEP team appointed by his or her resident school board under s. 115.78 (1).

50. Initial Evaluation The statute refers to an initial evaluation. The statute does not specifically encompass situations in which the child has already been identified and evaluated but does not currently have an IEP (due to private or home-schooling), though decisions that have cited this provision to deny students for lack of a valid or current IEP have been affirmed by the Department.

51. Parental Consent Application must be handled as regular education if: The child has been referred and the parent has refused consent for an evaluation. An IEP has been developed and the parent has refused placement. The parent has withdrawn consent for special education.

52. A parent should never be encouraged to withdraw consent. If a parent inquires about withdrawing consent, refer the parent to a special education director who can explain the consequences.

53. SPED Not Available or No Space

54. State Law Wis. Stats. § 118.51 (5) (a) 4. Board may consider whether the special education or related services required in the child’s IEP: Are available in the district or There is space in the special education or related services.

55. Review the IEP Review the IEP to determine the special education and related services required in the IEP. Even if the district’s special education programs and caseloads are at capacity, still may not deny open enrollment without a specific review of the child’s IEP.

56. Special Ed / Services Not Available Nonresident district has all the options of the resident district in providing special education to an open enrolled pupil: CESA, CCDEB, 66.0301, private school, etc. However, the nonresident district is not required to approve a pupil’s application if it does not have the special education or related services in the district.

57. Special Ed Space Not Available Establish criteria: Class size, pupil-teacher ratios, caseload factors, etc. Determine whether there is space to provide the special education or related services required in the IEP.

58. Regular Education Space Not Available

59. The most common reason for a space denial to be overturned is that the district did not follow its own criteria exactly and/or consistently.

60. Laws on Space Wis. Stats. § 118.51 (5) (a) 1 School board may consider space. Wis. Stats. § 118.51 (3) (a) 2. Preferences, guarantees, random selection. McMorrow v. DPI, 2000 WI App 173 Statute must be strictly construed. School boards may not make exceptions to their space criteria.

61. Policy Questions on Space Will board consider the availability of space in acting on open enrollment applications? May consider space in schools, programs, classes and grades.

62. Policy Questions on Space What will be included in that determination? Building capacity? Class size limits? Pupil teacher ratios? Enrollment projections? Who will be included in the count of occupied spaces? Tuition pupils (paid by another school district)? Currently attending pupils? Siblings of currently-attending pupils?

63. Policy Questions Do you want to guarantee approval to: Currently attending pupils? Siblings of currently attending pupils? Both? Neither?

64. Preferences or Guarantees? Must grant preference to: Currently attending pupils and siblings of currently attending pupils. Pupils & siblings of pupils attending K-8 district underlying UHS district to which the pupil applied. Preference requires space. May grant guarantee to: Currently attending pupils and/or siblings. Guarantee may be granted even if space is not available.

65. Two Ways to Guarantee Students Include currently-attending students or siblings in count of occupied spaces. Spaces designated are new spaces. Cannot both include student in count and then give a new space. Approve currently-attending students or siblings even if space is not available. District may fill more than designated spaces if necessary to accept guaranteed students.

66. Policy Concern Many policies include all three: Preferences Including some students in count of occupied spaces Guaranteeing some students in spite of no space. These all work differently, so district must decide which to use. Be sure to explain on appeal.

67. Implementing Space Policies

68. Determine Number of Spaces Class size x number of sections = capacity Or other measure of capacity. Capacity - projected enrollment = space

69. Building Capacity If your current or projected enrollment is exceeds the capacity of the building, you may deny pupils in the grades located in that building. Cannot use both building capacity and class size limits for the same building. If one building is at capacity but others with those grades is not, you must determine spaces in other buildings.

70. Determine what class sizes or pupil/teacher ratios you will use for open enrollment, e.g.: District class size policies. District average, school average, specific classes. Space criteria established specifically for open enrollment. SAGE. For high school, districts often use class sizes in core courses.