1. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Defending an Open Enrollment Appeal Step 1: Make a Good Decision Step 2: Explain It

2. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 All materials sent to the DPI must be copied to the other party!!

5. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Step 1: Make a Good Decision Defending an Appeal

8. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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? Written Criteria

11. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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? Written Procedures

12. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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? Implementation

13. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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? Documentation *Even more important than before because 30 days to appeal begins when notice of denial is postmarked.

15. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Making Good Space Decisions

16. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 …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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Implementation Calculating Available Spaces Using Class Sizes GradeClass Size SectionsCapacityProjected Enrollment Available Spaces 118236342 218236380

32. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Example 1 - ok Capacity100 Projected Enrollment (includes 5 currently attending students) 90 New spaces –Siblings –Random Selection 10 Total approvals15

34. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Example 2 - ok Capacity100 Projected Enrollment (includes 5 currently attending students) 100 New spaces0 Total approvals5

35. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Capacity100 Projected Enrollment (includes 5 currently attending students) 110 New spaces0 Total spaces0 Total approvals (because 5 students were included in count of occupied spaces) 5 Example 3 - ok

36. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Example 4 – not ok Capacity100 Projected Enrollment (includes 5 currently attending students) 100 New spaces5 Included in count of occupied spaces 5 Total approvals10

37. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 School board minutes Results of random selection Enrollment projections – include explanation

41. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 List of applications and approvals and denials, by grade GradeApplicantsSpacesGuarantees (if applicable) ApprovedDenied 152332 252123

42. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 List of applications and approvals and denials, by grade GradeApplicantsSpacesEligible for Preferences ApprovedDenied 152323 252123

43. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Making Good Undue Financial Burden Decisions

44. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Policies Not specifically required in statute, but, Recommend districts adopt statutory language in policy.

48. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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. Recommended Procedures

50. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 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

51. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Is district eligible for transfer of service revenue limit exemption? –If yes, cannot consider revenue limit.

52. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Review district’s total economic circumstances –Use DPI form (PI 9414) –Gather data & cost estimate –Consider data on district’s total economic circumstances –Determine whether cost is an undue financial burden in light of total economic circumstances

53. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Example 1 Actual additional special education cost = $15,000. District reviews data and finds: –Enrollment has declined over past 3 years, expected to continue to decline. –District has cut programs and staff due to revenue limits…

54. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 –Expenditures have exceeded revenues in recent past. –Further cuts expected. School Board reviews estimate in light of total economic circumstances and determines cost is an undue financial burden.

55. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Actual additional special education cost = $15,000. District reviews data and finds: –Enrollment has increased over past 3 years. –District has levied less than the maximum allowed in all or some of past three years. Example 2

56. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 –District revenues have exceeded expenditures over all or some of past three years. –General fund balance is increasing. School Board reviews estimate in light of total economic circumstances and determines cost is not an undue financial burden.

57. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Documentation Open enrollment policies and administrative rules Written procedures PI 9414 School board minutes: –Meetings considering budgets and/or adopting cuts –Meetings concerning open enrollment decisions

58. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Step 2: Explain it Defending an Appeal

59. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Copy of application Copy of notice of denial Certified mail receipt or affidavit of mailing Documentation of decision Submit Record upon Request of DPI

60. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 File a Brief Statement of facts –Include explanation of data and documentation Data do not stand by themselves Don’t assume that DPI will understand the data and documentation

61. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Argument –Why the district’s decision should be upheld –Respond to parents’ relevant arguments

62. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 File a Response Brief Point out factual errors in appellants’ brief Rebut appellants’ arguments

63. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Follow-Up Read decision Ask questions if you don’t understand decision If overturned… –Consult school board’s attorney if you wish to appeal to circuit court –Make necessary changes (policy, procedures, etc.) to correct problems identified in decision

64. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Open Enrollment Web Site www.dpi.wi.gov/sms/psctoc.html Open Enrollment List Serve receive information and announcements printed information rarely used to sign up, send email to: L.scott.eagleburger@dpi.state.wi.us Open Enrollment Web Site & List Serve

65. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Open Enrollment Staff Toll-free: 888-245-2732 Fax: 608-267-9207 Mary Jo Cleaver, Open Enrollment Consultant 608-267-9101, maryjo.cleaver@dpi.state.wi.us Scott Eagleburger, OE Data Manager 608-264-9555 L.scott.eagleburger@dpi.state.wi.us Joan Thompson, OE Program Assistant 608-267-9248, joan.thompson@dpi.state.wi.us Bob Soldner, School Management Services Director 608-266-7475, robert.soldner@dpi.state.wi.us

66. Wisconsin Department of Public Instruction Public School Open Enrollment Workshops November 2005 Department of Public Instruction 125 S. Webster Street P.O. Box 7841 Madison, WI 53707-7841 www.dpi.wi.gov/sms/psctoc.html