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

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.  Except when the resident district denied based on “best interests.” The DPI must allow the transfer if it finds the denial is not in the pupil’s best interests.

Step 1: Make a good decision. Step 2: Provide a complete record. Step 3: Explain the decision. Three Steps to Defend Appeal

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

School Board Policies  Wis. Stats. § (4) requires school boards to adopt open enrollment 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.

Policy Review  Are your policies current?  Do they address new laws: Alternative applications? Habitual truancy?  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, truancy/attendance policy)  Are your policies internally-consistent?

What Happens When An Appeal is Filed?

Parent Files Appeal With DPI  DPI Reviews Parent’s Appeal:  Is it timely? If no, appeal is not accepted. Within 30 days of postmark or personal delivery.  Is it complete? Name of pupil, name of district, signed... Must allege decision was arbitrary or unreasonable, as it relates to the reason for denials.  If complete, proceed to process appeal.  If not complete, return to parent to remedy.

Notify District & Request Record  DPI sends letter:  Acknowledges (to parent) receipt of the appeal.  Notifies (district) that appeal has been received.  Instructs the district to send the record.  Establishes a briefing schedule.

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.  Copies of all relevant documentation.  DPI submission form for appeal of space or undue financial burden denials.

Timely Submission of Record  Send complete record by due date.  Longer application period leaves less time to process appeals.  DPI will no longer request missing information.  Extensions will no longer be granted automatically: Will need substantial reason for extending due dates.

Should the District Submit a Brief? Yes!

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.

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.

DPI Reviews Record & Briefs

Specific to “Best Interests”  Copy of the application, including the parent’s explanation.  The district’s explanation as to why the transfer is not in the pupil’s best interests.  Any evidence to support the school board’s decision.

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  Form has been revised.  Requests less data.  Asks direct questions.

 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.

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.

Specific to Special Education  Referred for an Initial 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.

 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.

 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 in the special education / related services.  Projected enrollment in the special education / related services.

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.

 Pupil does not have a valid IEP.  Use most recent IEP available.  If IEP is not available, use most recent evaluation available.  If neither IEP nor evaluation is available, must treat the application as a regular education application.

Specific to Space  DPI has created a new form PI 9422 for submission of the record in space appeals. Will require:  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.  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.

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

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?

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?

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.

“Best Interests”

“Best Interests of the Pupil”  The parent is assumed to be the best judge of the best interests of the pupil.  If the resident school board believes the transfer is not in the pupil’s best interests, the onus is on the district to provide evidence and argument that the parent, in applying for open enrollment, is not acting in the child’s best interests.

Undue Financial Burden

 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).

State Law  Wis. Stats. § (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.

Cost of Special Education  Actual, additional costs to provide special education / related services in nonresident district.  The nonresident district is required to provide an estimate by May 24, as long as the resident district has provided a copy of IEP.  If the estimate is not provided, the nonresident district may not charge additional costs.

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.

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.

Undue Financial Burden  Can be argued 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.

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.

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

Expulsion

State Law & School Board Policies  Wis. Stats. § (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.

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.

Current Expulsion  Wis. Stats. § (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.

Nonresident District Denials for Special Education Reasons

Referred for Spec Ed Evaluation

State Law  Wis. Stats (5) (a) 6.  School board may consider whether the child has been referred to his or her resident school board under s (1) or identified by his or her resident school board under s (1m) (a) but not yet evaluated by an IEP team appointed by his or her resident school board under s (1).  This refers only to an initial evaluation.

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.

No Valid IEP  If the child has been found to have a disability, but does not have a current IEP:  Review the most recent IEP.  If no IEP is available,  Review the most recent evaluation.  If no evaluation or IEP available,  Must treat the application as a non-sped application.

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.

 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.

SPED Not Available or No Space

State Law  Wis. Stats. § (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.

Designation of Space  During the January meeting, the board must designate the number of special education spaces available in the district.  Use established criteria to determine the number of available spaces in programs and services that can have a class size or caseload.  May use enrollment projections.

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.  The board must provide the sped/services in the IEP in their totality. If the board cannot do so, may deny the application.

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, , 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.

Regular Education Space Not Available

 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.

Laws on Space  Wis. Stats. § (5) (a) 1  School board may consider space.  Wis. Stats. § (5)  Board must designate spaces at January meeting.  Wis. Stats. § (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.

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.

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?

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

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.

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.

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.

Implementing Space Policies

Basic Space Calculation  Apply criteria to determine the number of spaces available, by grade.  Subtract projected enrollment.  Result is the number of available spaces.

Simple Class Size Example GradeClass SizeSectionsCapacityProjected Enrollment Spaces

Space Criteria  Building capacity.  Class sizes.  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.

Enrollment Projections  The district must have enrollment projections for the following school year in order to apply space criteria.  Who is included in the count of occupied spaces? Currently-attending pupils? Siblings of currently-attending pupils? Pupils for whom tuition is paid by another school district?

Pupils Cannot be Counted Twice  If a pupil is included in the count of occupied spaces, the pupil cannot also be given a “new” open enrollment space.  For example:  If class size is 20 pupils and projected enrollment is 18 pupils, there are 2 new spaces.  If an applicant is already included in the 18, cannot then be given one of the 2 new spaces.

Preference v. Guarantee  Must grant preference for available spaces to:  Currently-attending pupils, and  Siblings of currently-attending pupils.  May guarantee approval to:  Currently-attending pupils, or  Siblings of currently-attending pupils.  Preference requires space.  Guarantee is approval regardless of space.

Random Selection  If there are more applications than spaces, pupils must be selected randomly, after granting preferences and guarantees.  If one pupil is selected, that pupil’s sibling(s) are given the next space in the sibling’s grade— provided space is still available in that grade.

Showing Approvals and Denials ApplicationsSpacesPreferences/G uarantees Number Approved Number Denied Categories and order of categories may vary depending on whether applicants were included in count of occupied spaces (in which case spaces are new spaces) or were granted guarantees or were granted only preference. The district is not required to present its information in this format, but DPI will attempt to fit data into this format in reviewing the appeal. Supporting documentation must still be included.

DPI Decision & Order

Decision & Order  DPI’s decision will be in the form of an order and will include finding of facts and conclusions of law.

Right to Appeal DPI’s Decision  If the school board’s decision is affirmed, the parent may appeal to circuit court within 30 days.  Decisions based on “best interests” are final.  If the school board’s decision is overturned, the school board may appeal to circuit court within 30 days.

 Read the order.  The order will explain why the decision was overturned.  If you do not understand, call us and we will explain it.  If you wish, we can meet with you to discuss your policy, criteria and procedures to assist you in making future decisions. If Your Decision is Overturned

Open Enrollment Resources Web site: Open Enrollment List serve: Receive information and announcements Printed information rarely used To sign up, send to:

DPI Open Enrollment Staff Mary Jo Cleaver, Open Enrollment Consultant or toll-free or Jennifer Danfield, Open Enrollment Education Specialist or toll-free or Robert Soldner, Director, School Management Services